Court File and Parties
COURT FILE NO.: CV-18-58041 & CV-16-56688 DATE: 2022-03-29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Niagara North Condominium Corporation No. 139 and Sushma Amin, Plaintiffs
– and –
Watts Water Technologies (Canada) Inc., Watts Water Technologies Inc., Watts Regulator Co., Watts Plumbing Technologies Taizhou Co. Ltd, Taizhou Shida Plumbing Manufacturing Co. Ltd, Wolverine Brass, Inc., Anderson-Barrows Metals Corporation, Marcel Gerald Leblanc, Leblanc Contracting, Energy Savings Corporation (Operating as the Monitoring Center), Catherine Campbell (Operating as Catherine Campbell, Interior Design) and John Doe, Defendants
COUNSEL:
C. Batrouny, for the Plaintiff Niagara North P. Ramirez, for the Defendant Watts Water Technologies B. Remigis, for the Defendant M. LeBlanc
AND BETWEEN:
Sushma Amin, Plaintiff
– and –
Watts Water Technologies (Canada) Inc., and Marcel Gerald Leblanc and Leblanc Contracting, Defendants
COUNSEL:
A. Pennino, for the Plaintiff Sushma Amin P. Ramirez, for the Defendant Watts Water Technologies B. Remigis, for the Defendant M. Leblanc
HEARD: February 18, 2022
BEFORE: The Honourable Justice M. J. Donohue
Reasons for Decision
Background
[1] These two related actions stem from a water loss which caused property damage to the plaintiffs’ condominium building.
[2] The plaintiffs have entered into a Pierringer Agreement with the Leblanc defendants (hereinafter the “settling defendants”).
[3] The issue before the court is the extent of the order which dismisses the claims against the settling defendants.
[4] The defendant, Watts Water Technologies (hereinafter the “non-settling defendants”), urges the court to add the disputed paragraphs 8, 9, and 10 in their draft order as follows:
THIS COURT FURTHER ORDERS that any Non-Settling Defendant may, on motion to this Court brought on at least 10 days’ notice and to be determined as if the Settling Defendants remained parties to the Action, seek orders for the following: (a) the use of the examination for discovery of the Settling-Defendants at trial, the transcript of which may be read into evidence as part of the Non-Settling Defendants’ case; (b) leave to serve a request to admit on the Settling Defendants in respect of factual matters; and/or (c) the production of a representative of the Settling Defendants to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants.
THIS COURT ORDERS that the Settling Defendants retain all rights to oppose such motion(s) brought under the above paragraph. Notwithstanding any provision in this Order, on any motion brought pursuant to paragraph 8, this Court may make such orders as to costs and other terms as it considers appropriate.
THIS COURT ORDERS that a Non-Settling Defendant may effect service of the motion(s) referred to in paragraph 8 above on by service on Counsel for the Settling Defendants.
[5] The plaintiffs in each action and the settling defendants consider this expansion of wording on the Pierringer order to be unnecessary, premature, and contrary to the key element of the settling defendants achieving non-party status.
[6] The non-settling defendants pulled this additional wording from the model order by the Class Action Bench-Bar Liaison Committee in the Consolidated Practice Direction. I was not directed to any case where this model order was used in a non-class action case.
[7] I note that the model order was a template which “should be tailored to suit the particular circumstances of each case.” I therefore consider what is required in this matter.
Reading in Discovery Transcripts at Trial
[8] The decision of Allianz v. Canada (Attorney General), 2017 ONSC 4484, 139 O.R. (3d) 424, at para. 37 made such an order but made the order “subject to the direction by the trial judge”.
[9] The decision later that same year of Accel Electric Contractors Ltd. v. Brampton (City), 2017 ONSC 6708, at para. 61 was more conservative. The court stated:
In this case, as in Allianz, I agree that all of the documents produced in both actions arising from the Project and all of the discovery transcripts should continue to be available to Accel. It will be for the trial judge to determine precisely how these may be used by whom considering that they were produced or examined at a time when there were other parties in the litigation. I too, do not see how I can rule in advance on the manner in which the trial will be conducted. At this point it is unclear who if anyone may seek to call the witness so it would not be appropriate to rule in advance on whether or not transcripts may be read in. [Emphasis added.]
[10] In light of these authorities, I accept the submissions of the settling defendants that paragraph 8(a), regarding an order to allow discovery transcripts to be read in, is premature and a matter for the trial judge. Accordingly, I deny paragraph 8(a).
Leave to Submit a Request to Admit
[11] In the course of the hearing, counsel advised that the non-settling defendants had already served a request to admit and the settling defendants were responding to same.
[12] On the understanding that this point is moot, paragraph 8(b) is unnecessary for the order.
Testimony of the Representative for the Settling Defendant under Cross-Examination
[13] The settling defendants submitted that they would be prejudiced if they had to summons a representative of the settling defendant as they would not be able to cross-examine their own witness.
[14] As above, this is a matter which is most appropriately dealt with by the trial judge. The non-settling defendants may apply to the trial judge to permit leading questions pursuant to rule 53.01(4) of the Rules of Civil Procedure or cross-examine the witness on a prior inconsistent statement pursuant to s. 23 of the Evidence Act, R.S.O. 1990 c. E.23.
[15] At this juncture, it is not known whether the plaintiffs will call the settling defendants as witnesses, in any event, such that the non-settling defendants will be in a position to cross-examine.
[16] The settling defendants submit that this issue should be left to the trial judge.
[17] On this point, the non-settling defendants rely on the decisions of Jamieson v. Kapashesit, 2018 CarswellOnt 22773 (S.C.) and Cheesman et al v. Credit Valley Hospital et al, 2019 ONSC 4996. These decisions do not assist as both decisions were made at trial by the trial judge.
[18] Accordingly, I am persuaded that paragraph 8(c) as drafted by the non-settling defendants is not appropriate at this time, and I deny its inclusion in the order.
[19] Counsel for the non-settling defendants submitted that they would lose “access to the evidence of the settling defendants”. It is not disputed that they have all the settling defendants’ productions, have attended and participated in examinations for discovery of the settling defendants and that all undertakings of the settling defendants have been satisfied.
[20] The most that this court should order is that the settling defendants are to advise the non-settling defendants of their contact information and to update that information if there is any change. I make this order consistent with the order for witness contact information as set out in the decision of Allianz at para. 37 (h) and (i).
Paragraph 9 Rights of Settling Defendants
[21] In light of my decision above not to allow the orders as set out in paragraph 8, the rights of the settling defendants as set out in paragraph 9 of the proposed order are unnecessary. I deny the inclusion of paragraph 9 in the order.
Paragraph 10 Service on Counsel
[22] In light of my decision above not to allow the orders as set out in paragraph 8, it is unnecessary to order that service may be effected on counsel. This is not appropriate in any event as one of the purposes of the Pierringer is to relieve the settling defendants of the necessity of retaining counsel.
Further Attendance if Required
[23] If the parties require a further attendance before me to settle the order, they are to advise by email to the judicial assistants at st.catharines.scjja@ontario.ca within seven days that a conference call is requested.
Costs
[24] If costs are being pursued, the settling parties to the motion may submit a one-page submission on costs with attached bill of costs by April 13, 2022. The non-settling parties may respond with a one-page submission on costs with attached bill of costs by April 27, 2022.
M. J. Donohue J.
Released: March 29, 2022