Court File and Parties

COURT FILE NO.: CV-15-526209 DATE: 2022/07/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ONTARIO POWER GENERATION INC., Plaintiff -and- DOOSAN POWER SYSTEMS LTD., Defendant

BEFORE: ASSOCIATE JUSTICE RONNA M. BROTT

COUNSEL: S. Woods & K. Patel – For the plaintiff Emails – Seumas.woods@blakes.com; kiran.patel@blakes.com

B. Brooksbank & R. Yehia - For the defendant Emails – bbrooksbank@blg.com; ryehia@blg.com

ENDORSEMENT

[1] The within action arises out of the conversion of the Atikoken Generating Station (“the plaint”) from burning coal to biomass fuel. Ontario Power Generation Inc. (“OPG”) and Doosan Power Systems Ltd. (“Doosan”) entered into a contract whereby Doosan was to provide design services and procure equipment for the project.

[2] The plaintiff OPG alleges it had to spend millions of dollars to repair the plant to make it operational after Doosan was negligent, inter alia, for failing to provide proper equipment to render the plant operational. The defendant Doosan has advanced a counterclaim for, inter alia, payment for services rendered.

[3] While there were initially two actions, those were consolidated in January 2021. The chronology of the within proceeding is as follows:

April 16, 2015 – Statement of Claim issued by OPG

September 2015 – Statement of Claim issued by Doosan

2015-2016 – Statements of Defence and Replies and Defences to Counterclaim exchanged;

2016 – 2017- The parties produced and exchanged over 35,000 documents;

February 2017 – Each party conducted 3 days of examinations for discovery;

May 2018 – Parties exchanged answers to undertakings;

August 2018 – OPG conducted 3 additional days of examinations for discovery;

November 2018 – OPG delivered a proposed Amended Statement of Claim which, inter alia, increased the prayer for relief from $11.5 million to $22 million;

December 2018 – Doosan conducted an additional 3 days of examinations for discovery;

2019 – 2020- OPG brought a motion seeking answers to undertakings and refusals and seeking further production;

July 2019 – Doosan provided its consent to the proposed Amended Statement of Claim;

August 21, 2019 – Amended Statement of Claim is filed;

December 10, 2019 – Master Short ordered Doosan to answer questions refused and to re-attend to answer questions arising therefrom;

March 6, 2020 – -Master Short ordered:

(1) Doosan shall answer questions refused, shall re-attend and shall pay costs to OPG; and

(2) A timetable, on consent of both parties, that there shall be two further days each for the completion of examinations for discovery which shall be conducted by September 2020; Mediation shall be conducted by December 18, 2020 and the action shall be set down by December 2020;

September/October 2020 – Doosan conducted 2 days of examination for discovery of OPG and OPG conducted 2 days of examinations for discovery of Doosan;

December 15, 2020 – Mediation is conducted and fails;

December 16, 2020 – Doosan advised of its intention to amend its Statement of Defence and Counterclaim and further, it sought to consolidate the two actions. OPG refused to consent;

December 18, 2020 – OPG filed the Trial Record;

December 18, 2020 – Doosan served a motion for leave to amend its Statement of Defence and Counterclaim;

January 15, 2021 – Consent Order of Master Short (to permit the amendment) as set out below;

January 19, 2021 – OPG delivered its Amended Reply and Defence to the Counterclaim;

March 1, 2021 – Parties exchanged written discovery questions;

March 11, 2021 – Doosan brought a motion before Master Short where one of the issues was the cost associated with producing the plant data between October 2013 and August 2015. OPG estimated the cost to produce the data would be approximately $50,000.00 (for 250 estimated hours of work); Master Short’s endorsement states:

OPG is to specifically cost the expenses necessary to obtain similar data.

The defendant is to contribute 25000 toward the costs of this exercise, if it elects to request the Pre July 2015 information. Otherwise no entitlement to costs of that exercise.

April 30, 2021- OPG delivered answers to the written questions. Doosan has not, to date, answered any of the written questions.

THE WITHIN MOTIONS

[4] Doosan seeks an Order to compel OPG to comply with the consent Order of Master Short dated January 15, 2021 and to answer the series of written discovery questions. As well, Doosan seeks an Order to compel OPG to prepare and produce and pay for the pre-July 2015 reports of the operations of the electrical generational station. OPG opposes the relief being sought.

[5] OPG brings a cross-motion to compel Doosan to answer approximately 315 (written) questions in relation to the amended pleadings.

[6] The relevant provisions of Master Short’s consent Order of January 15, 2021 (“the Short Order”) are as follows:

1. THIS COURT ORDERS that Doosan is hereby granted leave to amend its Statement of Defence and Counterclaim from Doosan, as attached in Appendix “A”, which shall be deemed to be served on Ontario Power Generation Inc. (“OPG”) as of the date of this Order.

2. THIS COURT ORDERS that OPG shall deliver its amended Reply and Defence to Counterclaim if any, within 14 days of this Order.

3. THIS COURT ORDERS that any additional examinations for discovery shall be limited to amended portions of the pleadings and take place in writing….

4. THIS COURT ORDERS that OPG shall not be required to conduct any additional searches for documents as a result of the Amended Statement of Defence and Counterclaim provided, however, that both parties reserve their rights (i) to seek additional production with respect to issues raised in OPG’s Amended Reply and Defence to Counterclaim, if any, (ii) to address any necessary production arising out of the additional discovery in paragraph 3 above,…

The fuel data

[7] While this was initially in dispute OPG has now agreed to produce the fuel data.

The plant data

[8] Doosan seeks production of the pre-July 2015 plant data. OPG initially agreed to produce it in a native format which is not readable for Doosan. OPG is able to obtain the software to convert the documentation into readable data. Clearly this plant operating data in a readable format is relevant not only to Doosan but also will be necessary evidence for the court at trial.

[9] Payment for the production of the plant data remains in issue. OPG maintains that Doosan should pay $25,000 regardless of the actual cost to produce the plant data. OPG submits that it was not the Master’s intention (in his endorsement of March 11, 2021) to split the cost and asserts that if Doosan now seeks to pay only fifty percent, then Doosan must move for a variation of Master Short’s order.

[10] Master Short’s endorsement of March 11, 2021 states that OPG is to specifically “cost the expenses necessary to obtain similar data” (i.e. pre-July 2015). He then goes on to state: “The defendant is to contribute $25,000 towards the cost of this exercise, if it elects to request the Pre-July 2015 information”.

[11] At the time of Master Short’s endorsement, OPG estimated the cost to produce the data at $50,000. The general rule is that the costs of production of a document are borne by the party producing it. Here, it is clear to me that Master Short deviated from the general rule, ordering the defendant Doosan to pay $25,000 (of the estimated $50,000 cost of the production of the pre-July 2015 data) “if it elects to request it”. Earlier in his endorsement he states: “I am satisfied the defendant is entitled to access to the more current & accessible data but in more proportional element

[12] In my view Master Short’s order took into account proportionality. In ordering Doosan to pay $25000, he considered the $50,000 estimate for the production cost. He ordered OPG to cost the expenses to produce the data. OPG has not done so despite being ordered to. Once the final cost is known, Doosan shall, within thirty (30) days of confirmation of the production costs, pay fifty percent of those costs up to a maximum of $25,000.00.

The amended pleadings questions

[13] OPG takes a restrictive view of the Short order of January 15, 2021 submitting that the words “the additional examinations for discovery shall be limited to amended portions of the pleadings” are limited only to the Amended Statement of Defence and Counterclaim and the Reply.

[14] OPG asserts that because Doosan had an opportunity to examine on its (proposed) Amended Statement of Claim in 2020, its discovery rights on that pleading ended at the conclusion of Doosan’s oral examination of OPG in late 2020.

[15] OPG ask this court to consider the factual matrix and specifically that because the Amended Statement of Claim was provided to Doosan before the 2020 examinations for discovery, it should be found that Doosan’s examination with respect to the Amended Statement of Claim was complete.

[16] Doosan submits that effect should be given to the plain language of the express terms of the Short Order as it was a consent order. The Short order references at para 3, the “amended portions of the pleadings” without any limitations. Doosan submits that the words themselves must be reviewed with regard to the factual matrix.

[17] A review of the correspondence pre-consent order is silent on the issue of whether Doosan’s examination of OPG was at an end. Counsels’ email exchange is indicative of an agreement between the parties that they both sought to finalize the pleadings and discovery phases of the litigation. The correspondence is clear that the parties were in agreement that they wished to complete all of the necessary steps to ready themselves for trial. As stated in Green v Canadian Imperial Bank of Commerce, 2020 ONSC 5342 at para 8:

Among other things examination for discovery allows the examining party to know the case it has to meet, obtain admissions helpful to its own case or harmful to the opposing party’s case, eliminate or narrow issues and avoid surprise at trial.

[18] As of the date of Master Short’s consent order in January 2021, OPG had conducted three days of examinations for discovery in February 2017, three days in October 2018 and two days in September/October 2020 for a total of eight days. Doosan had conducted three days of examinations in February 2017, three days in December 2018 and two days in September/October 2020 for a total of eight days.

[19] A reading of the Short order is clear for not only what it says, but also for what it does not say. The order does not state that additional examinations for discovery are limited only to the Statement of Defence and Counterclaim. Rather, it states “the amended pleadings”. The Short order does not specifically exclude the Amended Statement of Claim. Significantly, paragraph 5 of the Short order which speaks to the issue of searching for documents, does specifically refer to the Amended Statement of Defence and Counterclaim as well as to OPG’s Amended Reply and Defence to Counterclaim. As well, the transcript of Doosan’s examination of the plaintiff’s representative does not mention that the examination is concluded.

[20] A review of the written questions posed by both parties is also indicative that they are both seeking information referable not only to the amended pleadings, but also referable to the original pleadings. While OPG argues that Doosan is forbidden from asking any questions in relation to the Amended Statement of Claim, OPG’s own written questions (for example questions 1, 4, 8, 9, 36-40, 47 and others) are referable to Doosan’s original Statement of Defence. For OPG to try to separate out certain of Doosan’s questions is inappropriate given its own failure to do so.

[21] Rule 1.04 sets out the principle that the Rules shall be construed liberally to secure the just, most expeditious and least expensive determination. The parsing out by OPG of Doosan’s questions has added time and expense. The OPG interpretation of the Short order is rigid and narrow. Their position stands in the way of the parties knowing the case they have to meet.

[22] OPG relies also on the timetable order of March 2020 which indicates that all examinations were to be completed by the end of September 2020. Given the Amended Statement of Claim was only filed in 2021 and both the Amended Statement of Defence and Counterclaim, and the Amended Reply and Statement of Defence to the Counterclaim only came into being in 2021 – OPG asserts that that timetable was to be amended and extended. Again, OPG cannot cherry pick to its own advantage only. Master Short’s January 15, 2021 does extend the timetable.

[23] While OPG submits the factual matrix of the consent order should lead to a narrow interpretation of the Short order, I find otherwise. As I look first to the words of the consensual order, then to the intention of the parties with a review of the factual matrix, I find that the order speaks to all amended pleadings.

[24] The issues of relevance and proportionality were not addressed. Accordingly, it is ordered that all of the questions refused by OPG and all of the questions refused by Doosan shall be answered within 45 days.

[25] Costs outlines were not exchanged nor filed. No costs submissions were made at the hearing of the motion. The parties shall within thirty (30) days agree on the issue of costs failing which they shall exchange costs outlines in forty-five (45) days and they shall request a maximum of a thirty minute case conference with me to argue the issue of costs.

ASSOCIATE JUSTICE RONNA M. BROTT

Date: July 18, 2022