COURT FILE NO.: CV-06-313708-000A

CV-08-346635-00A1 CV-08-362262-00A1 CV-13-485892

DATE: 20220519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Solti and Eva Solti, Plaintiffs

AND:

Venmar Ventilation Inc., Defendant

AND:

Fasco Industries Inc. Third Party

and RE: Kamram Derayeh and Kathrne Herb Derayah, Plaintiffs

AND:

Venmar Ventilation Inc., Defendant

AND:

Fasco Industries Inc., Third Party

and RE: Sandra Kersteman, Plaintiff

AND:

Venmar Ventilation Inc., Defendant

AND:

Fasco Industries Inc., Third Party

and RE: Lachu Daryanani and Tina Daryanani, Plaintiffs

AND:

Venmar Ventilation Incorporated, The Manors of Sherwood Inc., The Manors of Sherwood Inc. carrying on business as Grand Valley Homes, Peter Plastina carrying on business as Grand Valley Homes, John Doe HVAC/Mechanical Sub-Contractor, ABC HVAC/Mechanical Subcontractor Company, Enbridge Gas Distribution Inc., John Doe HVAC/Maintenance Contractor and 123 HVAC Maintenance Company and Fasco Industries (Canada) Limited, Fasco Motors Limited, Regal Beloit Canada. Regal Beloit ULC, Tecumseh Products of Canada Limited, Von Weise of Canada Company, Not FM Canada FKA Fasco Motors Limited and Von Weise USA FKA Fasco Industries Inc., Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Joseph Baldanza, for the Plaintiffs, Lachu Daryanani and Tina Daryanani

Gosia Bawolska, for the Defendant, Venmar Ventilation Inc.

Cynthia R.C. Sefton, for the Defendant, Enbridge Gas

James Tausendfreund, for the Defendants, Fasco Industries Ltd., Fasco Motors Ltd., Regal Benoit, Regal Benoit ULC, Tecumseh Products, Von Weise of Canada, NOT FM Canada and Von Weise USA

Amanda Eston, for the Defendants, The Manors of Sherwood Inc., The Manors of Sherwood Inc. c.o.b. as Grand Valley Homes and Peter Plastina c.o.b. as Grand Valley Homes

Kevin Adams, for the Third Party Fasco Industries Inc.

HEARD: May 3, 2022

ENDORSEMENT

1This is my final endorsement on 4 actions I have been case managing. Today’s case conference involved 3 of the 4 cases I am managing but I have included all counsel in this endorsement. Three of the actions are claims by Plaintiffs against Venmar Ventilation Inc. (“Venmar”) for damages arising from fires alleged to have started due to deficiencies in ventilating units manufactured by Venmar. In these 3 actions, Venmar issued Third Party Claims against the manufacturer of the units, Fasco Industries (“Fasco”). These actions were commenced in 2006 and 2008; discoveries were completed in 2010 and the Third Party actions set down for trial after Venmar settled with the 3 Plaintiffs.

2In January 2017, one action appeared on the trial list for a trial set for April 3, 2017. At the request of counsel, I vacated that trial date since there was no order for trial together and the cases were not ready for trial. I issued an endorsement dated January 27, 2017 following a case conference. I ordered trial together of the 3 actions and directed counsel to advise me what further steps needed to be taken to ensure all 3 actions were ready for trial. I was formally appointed as case management judge in October 2017.

3Following that endorsement in 2017, I convened numerous case conferences and issued numerous endorsements in a vain attempt to move these matters forward. The orders that I made were largely ignored by counsel. In particular, counsel for Venmar did not comply with my requests concerning productions and expert reports, and filing trial records with the Court. Case managing these actions became an increasingly frustrating experience.

4In my endorsement of January 16, 2019, 2 years after I had become involved in the management of these actions, I noted, “It is incomprehensible to me why more than fifteen years after these fires occurred the Defendant Venmar has failed to move these matters on to trial. Instead, the files have languished for no reason and Court orders have been ignored.” I made further orders at that time concerning productions, expert reports and trial records.

5At some point in 2020, I learned of another action involving Venmar: Daryanani v. Venmar. This is an action commenced in 2013 and the damages of the Plaintiff have not been resolved; Fasco is a Defendant in that action as opposed to a Third Party. The Daryanani action appeared in Trial Scheduling Court in 2020 and was not ready for trial. I commenced case managing that action along with the other 3. Master McGraw had issued an order in July 2019 dealing with undertakings and refusals from discoveries and that Order had not been complied with.

6In November 2020, at a case conference, I was advised by counsel for Venmar that there was another case in Hamilton which involved a number of the same parties and similar facts. I was told that Justice Carpenter-Gunn had heard a motion and issued a decision in the action, which had been appealed to the Court of Appeal. As a result, counsel did not wish to fix a trial date in the Daryanani action. In my endorsement of November 23, 2020, I noted “Since 2017, I have been case managing 3 actions where Venmar is the Defendant and is asserting Third Party claims against Fasco as a result of fires that occurred in 2003 and 2006. Ms. Bawolska is counsel for Venmar in all 3 of those actions. I would have thought that in my capacity as the judge managing those actions, I would have been apprised of this action and of the ruling of Justice Carpenter-Gunn.” I made a variety of orders in my endorsement of November 23, 2020, and imposed a timetable for further steps.

7Counsel did not comply with my order of November 23, 2020. I received correspondence from counsel indicating that Venmar had not delivered its expert reports and that productions remained outstanding. I was advised for the first time that there were other lawsuits in other jurisdictions involving Venmar and Fasco arising from similar incidents as the claims in the actions I have been case managing. Furthermore, the productions and expert reports remained outstanding.

8In my endorsement of July 19, 2021 I stated, “Counsel for Venmar has shown disregard for the Case Management process and has repeatedly breached orders I have made as Case Management judge and has failed to comply with directions on timing…it is disrespectful to the Court and to the administration of justice.” I issued further timetable orders.

9I convened a further case conference on August 20, 2021. I was advised for the first time that another action involving Venmar and Fasco, Burr et al. v. Venmar et al., had proceeded to trial very recently before Justice Lemon in Guelph. Counsel for Venmar suggested that the findings of Justice Lemon in the Burr action would be binding on the parties in the other actions although other counsel did not confirm that to be accurate. I made a further order and a timetable for various steps. Counsel submitted a consent timetable by letter dated October 6, 2021 setting deadlines for the delivery of expert reports.

10In January 2022 I received correspondence from counsel advising that Justice Lemon had released his Reasons for Judgment in the Burr action and that Venmar was appealing the decision. A case conference was requested. Counsel for Fasco in the Daryanani action advised that his client would bring a motion for an order declaring the issues of liability as between Fasco and Venmar are res judicata and that the Daryanani action be stayed pending the appeal in Burr. Counsel in the 4 actions I am managing noted the timetable I had set had not and could not be complied with.

11I convened a case conference on May 3, 2022. Counsel advised that they concurred that a stay of the actions was appropriate. Counsel for Venmar once again advised that the decision in the Burr case when rendered by the Court of Appeal will be dispositive of the issues in these actions.

12I have been case managing these actions for more than 4 years; it has been a waste of my time and has resulted in no advancement in any of these actions. Had I known from the outset that there were numerous actions around the province dealing with the same issues in lawsuits involving the same parties, I would not have undertaken case management. Counsel are fortunate to have access to a case management judge particularly now when judicial resources are strained and there are backlogs and delay associated with the pandemic. In my view, it was incumbent on counsel for Venmar to advise me at an early stage that these 4 actions were only part of a larger number of cases which had identical issues. In particular, I should have been apprised of the Burr action in Guelph, which was set down and proceeding to trial much earlier than any of these other actions. The Court expects and deserves candor from counsel so that decisions that are reasonable and are in the best interests of the parties can be made.

13Although I ordered that trial records be filed in these actions, it is not clear to me if this has been done. If these actions are on the trial list, they are struck from the list. I will no longer case manage these actions.