One Source Fire and Life Safety Inc. v. Prica Group Construction Management Inc., 2021 ONSC 653

COURT FILE NO.: 1145/17; 51/18

DATE: 2021-01-27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: One Source Fire and Life Safety Inc., plaintiff 1145/17 AND: Prica Group Construction Management Inc. and Columbia Village Inc., defendants

AND RE: One Source Fire and Life Safety Inc., plaintiff 51/18 AND: Prica Group Construction Management Inc., 365 Albert Inc. and GMI Servicing Inc., defendants

BEFORE: Mr Justice Ramsay

COUNSEL: Edward J. Dreyer for the plaintiff; Manav Singhla for the defendants.

HEARD: January 27, 2021 at Kitchener

ENDORSEMENT

[1] These motions arise from two construction lien actions. The project involved the construction of student residences in Waterloo in two phases. The claims of all lien claimants have been consolidated into the two actions, the 2017 action for Phase 2 and the 2018 action for Phase 1.

[2] Each party brings two identical motions, one for each action.

[3] For my purposes it is enough to say by way of background that the plaintiff says that the claimants were not paid for electrical work and that they suffered damages by reason of the defendants’ delay in proceeding with the projects. The defendants counterclaim among other things for deficient electrical work and for the cost of having it completed or repaired by its replacement electrical contractor, Ozz Electric.

[4] The principal of the plaintiff has been cross-examined on his affidavit filed in support of the liens. On consent, Taylor J. made procedural orders on May 1, 2019. He consolidated the actions of the contractor and sub-contractors, gave leave to the parties to bring further motions, ordered the exchange of Scott schedules[^1] and ordered examinations for discovery. On July 17, 2019, Sloan J. ordered that certain further items be included in the Scott schedules [One Source v. Prica Group, 2019 ONSC 4329]. Examinations for discovery have not begun.

The plaintiff’s motion

[5] Section 19 of the order of Taylor J. provides that the parties may amend their Scott schedules after examination for discovery. The plaintiff is not satisfied with the particulars in the defendant’s current Scott schedule with respect to deficiencies in the work that were remedied by Ozz Electric. The remedy sought by the plaintiff is an order amending section 19 of Taylor J.’s order to provide that any amendment to the Scott schedule shall not advance new claims relating to One Source (the plaintiff with carriage, one of the lien claimants), or new claims for work done by Ozz Electric, without leave of the court.

[6] In its counterclaim, the defendant seeks two million dollars or so in damages for inadequate electrical work. The order of Taylor J. requires the defendants in its Scott schedule to identify separately all deficiencies, incomplete work and work that was omitted by agreement (“credits”), with a detailed description and a reference number. The defendant’s Scott schedule does not do this. In his affidavit, the principal of the defendants says that it hired Ozz Electric to do the work that the plaintiff had not done or had done incorrectly. He says that they did not track the work in such a way as to allow them to be more specific. The defendant says that it cannot identify any deficiencies attributable to One Source or why they are entitled to damages with respect to any invoice from Ozz Electric. They only know what they paid Ozz and for what work.

[7] I would have said that the defendant is responsible for defining the basis of its counterclaim. The information is not in the possession of the opposing party. Once they left the site, the contractors had no knowledge of what Ozz Electric did, whether anything the contractors had done was thought to be deficient or merely incomplete, or whether parts they had installed did not work and had to be replaced.

[8] In this sort of action, the Scott schedule performs the function of particulars. It gives definition to the pleadings and therefore to the relevance of questions on discovery. Without the particularity that was ordered by Taylor J. on consent, the plaintiff will have to go into discovery without knowing what questions are relevant to its defence of a substantial part of the counterclaim.

[9] The defendant’s position is that the plaintiff’s motion is premature. Given time, they may gain the requisite knowledge from third parties. I note that they have already had two years.

[10] The plaintiff’s solution is hardly draconian. It does not foreclose this part of the counterclaim. It merely requires leave of the court before it is advanced further. An order will go as asked by the plaintiff in paragraph 2 of its draft.

The defendant’s motions

Undertakings

[11] Undertakings were given during the cross-examination of the plaintiff’s principal. The undertakings have been fulfilled.

Particulars

[12] The plaintiff has not particularized its claim for damages (as opposed to its claim for payment). Unlike the defendant, the plaintiff says that it can give the requested particulars within 30 days. The plaintiff is ordered to do so.

Productions

[13] The plaintiff has answered the requests for productions in paragraphs 76 – 119 of the affidavit of Greg Kester dated January 19, 2021. Those answers are in my view sufficient having regard to relevance and proportionality.

Conclusion

[14] Paragraph 19 of the order of Taylor J. dated May 1, 2019 is replaced with the following:

19. AND THIS COURT ORDERS that the parties have leave to deliver amended Scott Schedules following the examinations for discovery, with the following exceptions:

(i) The Defendants shall be prohibited without leave from advancing new claims for deficiencies as against One Source Fire and Life Safety Inc.;

(ii) The Defendants shall be prohibited without leave from advancing claims for credits against Prowave Inc. or One Source Fire and Life Safety Inc. relating to work done by Ozz Electric for reasons other than the performance of incomplete work as at the date of termination; and

(iii) The Defendants shall be prohibited without leave from advancing new claims for deficiencies against Prowave Inc. relating to work done by Ozz Electric. The parties may make written submissions to costs not exceeding three pages in length to which a bill of costs and any offer to settle may be appended, the plaintiff within seven days and the defendant within seven further days.

[15] The plaintiff is ordered to give particulars of its claims for damages within 30 days.

[16] The parties may make written submissions to costs not exceeding 3 pages in length, to which a bill of costs and any offer to settle may be appended, the plaintiff within 7 days and the defendant within 7 days thereafter.

J.A. Ramsay J.

Date: 2021-01-27

[^1]: The construction law bar has developed a standard tool for organizing construction lien cases, known as "Scott schedules". In Scott schedules, the parties list each of the disputed factual issues concerning claims, counterclaims, and defences, and then summarize their positions on each of those issues. Although neither the Construction Act nor the Rules of Civil Procedure provide for Scott schedules, experienced construction law counsel know that the court will expect them to prepare and exchange these documents in any lien proceeding involving multiple parties and numerous issues: see Urbacon Building Groups Corp. v. Guelph (City), 2009 CarswellOnt 8127, [2009] O.J. No. 5531, para. 14 (Corbett J.).