Court File and Parties

COURT FILE NO.: CV-15-536526

MOTION HEARD: 31 May 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Renzo Villa, Plaintiff

AND:

Association of Professional Engineers of Ontario, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Megan Mah and Daniel Wong, counsel for the moving party defendant Salvatore Guerriero, counsel for the responding party plaintiff

HEARD: 31 May 2022

Reasons for Decision

[1] The defendant seeks an order compelling the plaintiff to deliver copies of his schedule A productions and to attend an examination for discovery.

[2] As a preliminary matter, newly retained counsel for the plaintiff requested an adjournment in light of the last minute service of these motion materials. While the materials were technically served “in time” (May 19 for a May 31 motion which included a long weekend), there was no reason for them to have been so delayed. The defendant booked this motion in February 2022. It knew the plaintiff was self-represented and would need time to respond. It could have given him three months but instead served its motion record and factum on 19 May 2022.

[3] In order to move forward, I heard submissions on the adjournment request and on the motion (understanding that they were only as fulsome as the service timing had allowed) and reserved on both.

[4] While this service issue was avoidable and disappointing, the motion did not come as a surprise to the plaintiff when he received the record on May 19. He had been served with the notice of motion in February 2022 setting out the relief sought and the particularized grounds for the requests and it followed months of correspondence requesting both the productions and discovery dates.

[5] Despite the timing, I do not agree that the motion should be adjourned. This is a 2015 action. The plaintiff has amended his claim at least three times. I have been case managing the action since 2019. It is important that the remaining steps not be delayed so that the matter can proceed to trial. The interests of justice favour the motion being heard rather than being adjourned.

[6] The plaintiff also argued that the motion was premature and should await the release of a decision on an appeal recently heard by the Divisional Court that related to the plaintiff’s professional conduct hearing before the discipline committee of the Professional Engineers of Ontario.

[7] The plaintiff argues that, if he is successful on the appeal, he intends to move for summary judgment in this action. The plaintiff is free to bring that motion, but awaiting that decision should not cause further delay in this civil action. There is no indication when the Divisional Court might render its decision nor is there an indication of what the outcome might be.

Productions

[8] The only reason offered by the plaintiff for his failure to provide copies of his productions is that the defendant is in default of various requirements under the Rules. Even if this were so, and I need not make any finding on that allegation, it is irrelevant to the plaintiff’s obligation to produce copies of his documents.

[9] It was suggested that the plaintiff had already produced these documents through a prior counsel, although given the timeframe available, he did not have evidence to support that assertion. I do note that the defendant filed an extensive record of its requests for these productions and there is no email from the plaintiff to the defendant reminding it that he had already provided what it was looking for. Nor did he make that argument before me in September 2021 when this issue was addressed.

[10] I have already ordered the plaintiff to provide copies of his productions to the defendant and that is the complete answer on this point. Before the order was made, there were even discussions about the easiest method of delivery for each party. My endorsement of 22 September 2021 states as follows:

6. The parties will deliver any productions requested by the other side within 10 days of a request being made. The plaintiff will deliver his productions to the defendant electronically. The plaintiff will advise the defendant whether he wishes its productions to be delivered electronically or in paper copy.

[11] The defendant made repeated requests for the productions starting on 28 September 2021 and, to date the plaintiff has not complied.

[12] The plaintiff shall provide the defendant with electronic copies of his productions within fourteen days of this endorsement.

Examination for Discovery

[13] The plaintiff argues that he should not required to attend an examination for discovery for four reasons. First, the defendant has waived its right to examine him as it did not abide by the discovery plan that was agreed to in February 2017. Second, it has not indicated on what areas it wishes to examine him. Third, it did not serve a notice of examination. Fourth, it has tendered a false document or documents. There were other cited grounds of alleged non-compliance, such as the defendant’s failure to serve the lawyer’s certificate with its affidavit of documents, an assertion the defendant denies (I note there is a signed copy of the certificate appended to the plaintiff’s responding affidavit as part of Exhibit Y at caselines A152).

[14] I find the defendant did not waive its right to examine the plaintiff. So that there was no misunderstanding, the defendant confirmed to the plaintiff by email sent 26 January 2022 its position that it had not waived its rights, in an attempt to avoid this motion. The discovery plan was agreed to in February 2017. The plaintiff then obtained leave to amend his statement of claim in May 2017. Pleadings were completed and the parties exchanged affidavits of documents. The plaintiff examined a representative of the defendant in November 2017. Thereafter both parties sought to again amend their pleadings. A fresh motion was heard in February 2020 and the order was not settled until May 2021. My endorsement of 20 May 2021 set out a consent timetable for the delivery of amended pleadings, the exchange of new affidavits of documents and mediation. The most recent second fresh as amended statement of claim was not served (due to filing issues) until 4 January 2022.

[15] On the second argument, the defendant was not required to limit its examination to “new issues” or to advise the plaintiff on what issues it wished to examine. It has never examined the plaintiff on any issue and is entitled to do so.

[16] On the third point, the defendant did not need to serve a notice of examination for two reasons. First, the plaintiff had already indicated that the defendant had waived its right to examine him and he would therefore not attend, so requiring a party to go through that formality would only cause unnecessary time and expense. Second, my endorsement of 22 September 2021 provided that if the plaintiff advised that he would not attend to be examined, the defendant was free to bring this motion. The endorsement stated in paragraph 11:

11. The defendant wishes to examine the plaintiff as it has not yet conducted an examination for discovery. The plaintiff will advise the defendant by 30 September 2021 whether he will agree to an examination. If he will not agree, the defendant is free to bring a motion before me for an order that the plaintiff be examined for discovery.

[17] On the last point, even if the defendant had or is relying on a false document, a submission not fully before me, it would not relieve the plaintiff from being examined. It is a matter for argument at trial.

Conclusion

[18] The court cannot allow an action to get to the seven year mark without one party delivering productions that have been ordered, or submitting to discovery. It is in the interest of both parties that this happen.

[19] As per paragraph 12, the plaintiff shall provide defendant’s counsel with electronic copies of his productions within fourteen days of this endorsement.

[20] He shall attend to be examined for discovery by zoom by 30 September 2022 on a date to be agreed within fourteen days of this endorsement.

[21] I encourage the parties to agree on costs. If they cannot do so by 30 June 2022, they may each file submissions no more than three pages in length with my assistant trial coordinator, Ms. Meditskos at Christine.Meditskos@ontario.ca by 7 July 2022.

[22] This action must be set down by 1 September 2022. The defendant’s factum referenced an extension to 31 December 2022 but that relief was not sought in the notice of motion. If the plaintiff requires an extension to set the matter down, the parties may deliver a draft consent order to me for issuance. If he does not require an extension, he must be mindful of the upcoming set down date.

[23] The court wishes to thank the plaintiff’s pro bono counsel for preparing materials on short notice and attending to assist.

Associate Justice Jolley

Date: 7 June 2022