OPG Investment Holdings Limited Partnership v. KPMB Architects, 2022 ONSC 6587
Court File No.: CV-21-657970 Motion Heard: 2022-11-04 Superior Court of Justice - Ontario
Re: OPG Investment Holdings Limited Partnership, OPG Investment Holdings GP Inc., and 170 Bloor West Investments Inc., Plaintiffs And: KPMB Architects, Defendant
Before: Associate Justice Jolley
Counsel: Michael Foulds and Grace Tran, counsel for the moving party defendant David Major, counsel for the responding party plaintiffs
Heard: 4 November 2022
Reasons for Decision
[1] The defendant seeks an order requiring the plaintiffs to provide particulars of certain portions of their fresh as amended statement of claim and striking paragraph 13 of the claim.
[2] On 27 January 2022, the defendant served a demand for 39 instances of particulars. While the plaintiffs’ initial response was that sufficient particulars had been pleaded to enable the defendant to deliver a defence, on 28 September 2022 they provided a more fulsome response (the “Response to Demand for Particulars”). The defendant maintains that it cannot know what negligence is alleged against it and that the claim is too broad and vague to permit it to plead without additional particulars. It proceeds on nineteen of its original requests for particulars.
[3] Pleadings provide the framework for the parties’ dispute and it is important that they are drafted to ensure that each party knows the case to be met, knows what productions are relevant and knows the parameters of examinations for discovery.
[4] Particulars may be required to limit the generality of pleadings but not to the extent that they move from material facts into the realm of evidence. Their primary purpose is to clarify a pleading sufficiently to allow the opposite party to respond. They are intended to narrow the generality of a pleading, define the issues and prevent surprise at trial (Duron Ontario Ltd. v Cladit Siding Solutions Inc. 2018 ONSC 3897, referencing Pennyfeather v. Timminco Ltd. 2011 ONSC 4257 at paragraphs 69 and 60).
[5] The parties agree on the applicable test on a motion for particulars. The particulars must not be within the knowledge of the party requesting them and they must be necessary to enable the requesting party to plead (Physicians’ Services Inc. v. Cass 1971 CanLII 359 (CA)).
[6] The defendant’s representative has deposed that it is unable to understand from the pleading what the allegations of wrongdoing are against it. It requires the particulars to defend.
Review of the claim and the particulars sought
[7] The plaintiffs are, loosely, the owners of the Park Hyatt Toronto. Pursuant to an architectural services agreement dated 29 March 2018 (the “Agreement”), they engaged the defendant as the architect and service and development coordinator for the design and redevelopment of the Park Hyatt.
[8] The thrust of the claim is that the parties agreed to a maximum contract price of $128,498,117 for the design and redevelopment of Park Hyatt Toronto. The plaintiffs allege that the anticipated total cost will be more than $152,000,000. They hold the defendant responsible for that cost overrun which they allege was caused by the defendant’s negligence and/or breach of contract.
[9] Particulars are sought with respect to paragraphs 19, 21, 24, 25, 27, 30, multiple subparagraphs of paragraph 32, paragraphs 35, 36, 40, 41, 42, 43 and 44. Numerous other particulars were requested but withdrawn by the defendant upon its receipt of the Response to Demand for Particulars. For ease of reference, given the extensive particulars requested and the responses received, the attached Appendix sets out the paragraph of the claim in issue, the demand made and the response to the demand.
[10] The defendant has grouped the requests into eight categories, which I have adopted for the purpose of this decision.
Category 1
[11] This category encompasses paragraphs 19, 32 and 35 of the statement of claim and seeks exact particulars of the deficiencies, errors and omissions alleged.
[12] Before any particulars were provided, paragraph 32 contained eleven specific alleged errors, omissions and deficiencies and breaches of the Agreement.
[13] In the Response to Demand for Particulars, the plaintiffs clarified that they allege that every change recorded in the Change Log as due to “Design Coordination, Site Conditions or Code Issues” was made as a result of the defendant’s error, omission or deficiency or breach of contract.
[14] The defendant now knows with particularity that the plaintiffs are claiming that it is responsible for 1,022 of the changes on the project. What it wants to know in addition is why the plaintiffs allege it is responsible for those changes or what the specific error was in each instance.
[15] The defendant argues that identifying the change is not enough; simply because a change was made does not mean that there was an error on its part. But that is precisely the plaintiffs’ position. They allege that, had the defendant not breached the Agreement, there would have been no changes required (other than Owner Changes, for which the plaintiffs do not seek relief). Under the Agreement, the defendant was responsible for all phases of the design. If issues developed during the construction of the defendant’s design that required changes, those changes are the defendant’s responsibility. Those changes are specifically identified throughout all the change documents including the Change Log, which includes a column “Reason for Extra”.
[16] PCL, the builder, has included in its Change Log the reason for the change, so all parties can identify the 1,022 changes that are attributed to Design Coordination, Site Conditions or Code Issues. It would go beyond the realm of material fact to require the plaintiffs to plead in its claim, for instance, that the door and wall in the telecom room had to be changed due to the defendant’s design negligence in improperly situating the door (an example taken from the Change Log described as due to Design Coordination) and to provide that level of detail for each of the 1,066 changes in issue.
[17] The defendant has indicated that “we understand that you are saying that it’s all design coordination and site conditions and code issues, but just to be clear, our position is that can’t possibly be true.” The defendant may disagree and may defend on the basis that the changes were not due to any breach of contract or negligence on its part. Whether the reason for each of the changes in question is properly attributed, and whether the defendant is responsible for each change so designated are matters for discovery and trial. But having received the Response to Demand for Particulars, the defendant has enough information to plead its position.
[18] I am also not satisfied that the information requested is not within the defendant’s knowledge. While it may not agree with the characterization of the changes reflected in the Change Log and various other documents, it was privy to the documents submitted that generated the changes at the time they were created or reviewed and has had a copy of the Change Log in its possession throughout.
[19] I am satisfied that the plaintiffs have provided sufficient particulars to enable the defendant to plead.
Category 2
[20] This category encompasses paragraphs 24, 25, 27, 32(f), 36 and 40 of the statement of claim and seeks particulars of the errors alleged in each design document and details of what information the defendant failed to provide in a timely manner.
[21] The plaintiffs rely on paragraphs 2.1.4(d) and (e) of the Agreement, which oblige the defendant to prepare the documents in a timely fashion and in accordance with the Design Timetable (as defined), “so that the Project milestones can be achieved”.
[22] The plaintiffs have listed in the Response to Demand for Particulars the specific documents that discuss the timing of the plaintiffs’ requests for information and the timeliness of the defendant’s responses, which were tracked throughout the meeting minutes and monthly reports.
[23] Anything further would be inappropriate for a pleading. The plaintiffs’ claim would multiple many times over from its present fifteen pages if it were to list each instance of delay from March 2018 to March 2021 and beyond and the reason for each specific delay. The defendant does not require information as to “who made each request for information, on what issue, on what document and in what form” (assuming it does not have this information, which was provided at meetings where it was present) in order to plead. This level of detail is more appropriate for discovery.
[24] The particulars sought with respect to the errors and deficiencies raised in paragraphs 25, 27, 36 and 40 are addressed by the plaintiffs’ Response to Demand for Particulars and my reasons in Category One.
[25] With respect to the allegation in paragraph 32(f), the defendant asks the plaintiffs to identify which Design Documents were not prepared in compliance with applicable Code, laws, bylaws and regulations and to identify which particular sections were not complied with. In answer to a demand for particular concerning paragraph 19, withdrawn as having now been answered, the plaintiffs set out each Act, Code and regulation on which they rely. They have also responded that the reasons for change set out in the various logs and change documentation indicate where issues relate to Code, laws, bylaws and regulations. This is sufficient to enable the defendant to plead.
Category 3
[26] This category addresses paragraph 30 of the statement of claim and seeks particulars of the subconsultants and subcontractors allegedly implicated in the allegations against the defendant. That paragraph alleges that the defendant did not take reasonable care to avoid errors, omissions and deficiencies in the Design Documents that it or its subconsultants prepared.
[27] The plaintiffs rely on section 2.1.3(e) of the Agreement which provides that the defendant is responsible for retaining all subcontractors and that the work of the subcontractors “shall be deemed to be performed by the [defendant] and the [defendant] shall be fully responsible and liable for such services.”
[28] The plaintiffs have identified the specific 1,066 changes that comprise their claim and the defendant is now able to identify what subconsultants and subcontractors were involved in those specific changes. I also note that the defendant has as much information about the subcontractors involved as do the plaintiffs as they were retained by the defendant and the defendant was present at all meetings in which these various changes were discussed. It was also responsible under the Agreement for reviewing and approving their work. I am satisfied that further particulars are not required to plead.
Category 4
[29] This category encompasses subparagraphs 32(b), (g) and (h) of the statement of claim and seeks particulars of the allegation that the defendant failed to act in a timely manner.
[30] As noted in paragraph 24, above, the plaintiffs have set out in the Response to Demand for Particulars the various logs, meeting minutes and monthly reports that discuss the timing of the plaintiffs’ requests for information and the timeliness of the defendant’s responses, which were tracked throughout the meeting minutes and monthly reports.
[31] Further particulars are not required to permit the defendant to plead.
Category 5
[32] This category addresses subparagraph 32(d) of the statement of claim and seeks particulars of the allegation that the defendant did not investigate or incorporate the site conditions.
[33] The plaintiffs have advised that the Reason for Extra column in the Change Log, upon which they rely, identifies those changes that arose from Site Conditions.
[34] The specific evidence of the allegation can be obtained during discovery. With the information provided in the Response to Demand for Particulars, I find that no additional particulars are needed to plead.
Category 6
[35] This category addresses subparagraph 32(e) of the statement of claim and seeks identification of the specific structural analyses that were alleged to be deficient.
[36] The plaintiffs again point to the Reason for Extra column in the Change Log which identifies those changes that arose from Code Issues. Because of the allegedly deficient structural analyses, the plaintiffs plead that PCL issued numerous Requests for Information, which also reference code issues and site condition issues.
[37] With the particulars provided in the Response to Demand for Particulars, nothing further is required to permit the defendant to plead.
Category 7
[38] This category encompasses paragraphs 21 and 41 of the statement of claim and seeks particulars of the allegation that the defendant failed to warn the plaintiffs.
[39] The plaintiffs did not provide particulars, taking the position that none were needed to enable the defendant to plead. Paragraph 41, in my view, provides sufficient particulars. It alleges that the defendant had a duty to warn the plaintiffs “that the design and drawings included errors, omissions, and deficiencies”. In terms of the particulars of how the defendant failed in that obligation, paragraph 41 goes on to plead that, instead of warning the plaintiffs of these deficiencies, the defendant “maintained that such design and drawings are free from errors, omissions, and deficiencies, which caused continued and ongoing damages to be suffered by the plaintiffs”.
[40] The plaintiffs also rely on paragraph 2.1.3(h) of the Agreement that requires the defendant to “promptly notify the [plaintiffs] in writing whenever the [defendant] shall know or have reason to believe that the Design Documents contain any error, omission or deficiency. The [defendant] shall promptly correct, at its sole cost and expense, errors, omissions or deficiencies in the Design Documents.”
[41] I find that no further particulars of these paragraphs are required to plead.
Category 8
[42] While this was not sought in the demand for particulars or in the notice of motion, the defendant included in its factum a request for particulars of the fiduciary relationship alleged in paragraphs 21, 42, 43 and 44. It sought information about how the relationship between it and the plaintiffs was special, what the attributes were of the relationship and what was the plaintiffs’ alleged vulnerability to the defendant’s exercise of its discretion or power.
[43] I am satisfied that the constituent elements of the relationship are pleaded. The plaintiffs have pleaded that the defendant had the ability to exercise some direction or power over the design, installation and construction of the project and that its unilateral exercise of that power caused the plaintiffs detriment. The defendant may defend on the basis that the plaintiffs were not vulnerable to their exercise of discretion or power and this is a subject they can explore on discoveries.
[44] Further particulars are not required for the defendant to plead.
Paragraph 13 relating to insurance
[45] The defendant seeks to strike paragraph 13 of the claim which pleads that:
- In reliance on the Agreement and KPMB’s representations, OPG purchased a professional liability Errors & Omissions Insurance Policy on behalf of and in respect of the services performed by KPMB and its sub-consultants with a limit of $10.000,000.00. The Plaintiffs state that the errors and omissions in the performance of the professional services described below are covered by such policy.
[46] The plaintiffs defended the inclusion of this paragraph on the basis that it demonstrated that they had fulfilled their contractual obligations. But no one has put that in issue. The fact that the plaintiffs purchased insurance cannot have any bearing on the outcome of the dispute. It is therefore scandalous and should be struck.
Conclusion
[47] I agree with the defendant that particulars of the claim were required. However, I find that the plaintiffs did provide sufficient particulars in the Response to Demand for Particulars to enable the defendant to plead. The level of detail sought by the defendant is best left for the discovery stage. Other than the relief sought with respect to paragraph 13, the motion is dismissed.
[48] The parties have filed costs submissions. If they cannot agree on costs, they may make supplementary submissions no more than three pages in length, and submit them to my assistant trial coordinator, Ms. Meditskos, by email to Christine.Meditskos@ontario.ca by 14 December 2022.
Associate Justice Jolley
Date: 23 November 2022
APPENDIX
Paragraph 19
[49] Paragraph 19 pleads:
- [The costs overruns] were “as a result of KPMB’s errors, omissions, deficiencies and/or failure to perform its obligations under the Agreement.”
[50] The defendant seeks particulars on the exact errors, omissions, deficiencies and/or failure to perform obligations that are being alleged as against KPMB.
[51] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which they cited an example of the type of Change Documentation packages (the “Change Packages”) the defendant “was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 21
[52] Paragraph 21 pleads:
- KPMB's breach of the Agreement, negligence, negligent misrepresentation, breach of duty or warn, breach of warranty, and/or breach of fiduciary duty relating the performance of its services under the Agreement caused the Project to be delayed. which resulted in loss and damages to be suffered by the Plaintiffs.”
[53] The defendant seeks particulars of the specifics of the allegations pertaining to the failure to warn - what exactly should KPMB have warned the plaintiffs about.
[54] The Response to Demand for Particulars provided:
The response provided to this paragraph relates to the breach of warranty allegation in paragraph and not to the failure to warn allegation, even though it references the failure to warn particular. The answer to the failure to warn, presumably, is that “we disagree that you require the particulars sought in order to plead. In any event, due to the lack of specificity provided by KPMB, any response will inevitably lead to ambiguity in what is being sought.”
Paragraph 24
[55] Paragraph 24 pleads:
- Throughout the course of the Project, KPMB also failed to provide information, directions, Design Development Documents and Construction Documents in a timely fashion and in accordance with the Design Timetable, despite the Plaintiffs making repeated requests for the same.
[56] The defendant sought the following particulars:
a) the allegation that KPMB failed to provide information, directions, Design Development Documents and Construction Documents in a timely fashion and in accordance with the Design Timetable. When did this occur, what specific documents and information were not provided in a timely fashion, and with respect to which part of the Project; and
b) specify when the plaintiffs made the repeated requests for information, Design Development Documents and Construction Documents including which individuals at the plaintiffs, when such requests were made, on what issue, what particular document, and whether made orally or in writing.
[57] The Response to Demand for Particulars provided:
The particulars are contained within the RFI Log, Submittal Log, and Change Log, OAC Meeting Minutes, and Monthly Reports, each of which is in your client’s possession, and contains tracking of the timeliness of KPMB’s responses to the various Change Documentation received during the Project.
Paragraph 25
[58] Paragraph 25 pleads:
- In addition, the substandard quality of KPMB's deliverables resulted in an unreasonable and excessive amount of Change Requests, Requests for Information, Change Notices, Supplemental Instructions, Change Directives, and Change Orders on the Project, all of which resulted from KPMB's failure to properly perform its obligations under the Agreement.
[59] The defendant sought the following particulars of which deliverables were substandard; and which Change Requests, Requests for Information, Change Notices, Supplemental Instructions, Change Directives and Change Orders were unreasonable and excessive.
[60] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 27
[61] Paragraph 27 pleads:
- The Plaintiffs incurred and continue to incur significant additional costs as a result of the extended duration of the Project. The Plaintiffs also incurred and continue to incur costs associated with accelerating the work on the Project in an effort to make up for lost time caused by delays resulting from the errors, omissions, and deficiencies in the Design Documents, and in an effort to mitigate their costs and damages resulting from the delays associated with KPMB's failure to properly perform its obligations under the Agreement.
[62] The defendant sought particulars with respect to the errors, omissions and deficiencies in the Design Documents, including the particular Design Document(s) containing the alleged errors, omissions and deficiencies, and the specific error, omission and deficiency contained within said document.
[63] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 30
[64] Paragraph 30 pleads:
- KPMB owed a duty of care to the Plaintiffs to provide all of its services with the reasonable care, skill, diligence and competence as professional architects which is customary and usual for consultants appointed in a similar capacity in performing work on a basis which is reasonably comparable to the unique Project. In this regard, KPMB was required to take reasonable care to avoid errors, omissions, and deficiencies in the Design Documents that it, or its sub-consultants, prepared and/or reviewed.
[65] The defendant sought particulars of which sub-consultants the plaintiffs alleges are implicated with respect to the allegations made against KPMB, and any alleged error by said sub-consultant.
[66] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 32
[67] The pertinent subparagraphs of paragraph 32 plead:
- The Plaintiffs plead that KPMB breached the Agreement and its duty of care, and that the Plaintiffs continue to identify errors, omissions, and deficiencies in the Design Documents prepared by KPMB, the particulars of which include, but are not limited to:
(b) Failing to manage the flow of information with respect to design, inspection and construction of the Project, to ensure adequacy of design and/or completion of the Project in accordance with the Design Timetable;
[68] For subparagraph 32(b), the defendant sought the particulars of KPMB mismanaging the flow of information with respect to design, inspection and construction of the Project.
[69] The Response to Demand for Particulars provided:
The particulars are contained within the RFI Log, Submittal Log, and Change Log, OAC Meeting Minutes, and Monthly Reports, each of which is in your client’s possession, and contains tracking of the timeliness of KPMB’s responses to the various Change Documentation received during the Project.
[70] Paragraph 32(d) Failing to or inadequately conduct investigations to identify and accurately locate and incorporate existing site conditions;
[71] The defendant sought particulars of the site conditions that the plaintiffs allege were not properly investigated, and identification of the specific site condition.
[72] The Response Demand for Particulars provided:
The reasons for changes are set out in the Change Documentation and Change Log, including related to site conditions, structural analyses, and issues related to certain Codes, laws, by-laws and regulations to which KPMB failed to design in accordance therewith. For clarity, the “Reason for Extra” column in the Change Log identifies certain changes as arising from “Site Conditions” and “Code Issues”, each of which, OPG asserts against KPMB.
[73] Paragraph 32(e) Failing to identify all structural analyses necessary to evaluate the protection and support required to assure integrity of affected structures.
[74] The defendant sought particulars of the structural analyses alleged that KPMB failed to identify in order the evaluate the protection and support required.
[75] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
[76] Paragraph 32(f) Failing to prepare the Design Documents that:
i. Were substantially free of errors and omissions;
ii. Were prepared with the degree of care and skill in the provision of its Services which is customary and usual for architects appointed in a similar capacity in performing work on a basis which is reasonably comparable to the Project;
iii. Incorporated all interface requirements; and
iv. Were designed in accordance with the requirements of all applicable Codes, laws, by-laws and regulations of the federal, provincial or municipal jurisdiction of the Project.
[77] The defendant sought particulars of the errors and omissions.
[78] The Response to Demand for Particulars provided:
The reasons for changes are set out in the Change Documentation and Change Log, including related to site conditions, structural analyses, and issues related to certain Codes, laws, by-laws and regulations to which KPMB failed to design in accordance therewith. For clarity, the “Reason for Extra” column in the Change Log identifies certain changes as arising from “Site Conditions” and “Code Issues”, each of which, OPG asserts against KPMB.
[79] Paragraph 32(g) Failing to correct design errors or amend the design in a timely manner in order to expedite construction.
[80] The defendant sought particulars of instances where KPMB failed to correct design errors or amend the design in a timely manner.
[81] The Response to Demand for Particulars provided:
The particulars are contained within the RFI Log, Submittal Log, and Change Log, OAC Meeting Minutes, and Monthly Reports, each of which is in your client’s possession, and contains tracking of the timeliness of KPMB’s responses to the various Change Documentation received during the Project.
[82] Paragraph 32(h) Failing to make decisions and/or issue instructions in a timely manner.
[83] The defendant sought particulars of instances where KPMB failed to make decisions and/or issue instructions in a timely manner and sought details of the particular decision and/or instruction that is alleged not to have issued in a timely manner.
[84] The Response to Demand for Particulars provided:
The particulars are contained within the RFI Log, Submittal Log, and Change Log, OAC Meeting Minutes, and Monthly Reports, each of which is in your client’s possession, and contains tracking of the timeliness of KPMB’s responses to the various Change Documentation received during the Project.
Paragraph 35
[85] Paragraph 35 pleads:
- The Plaintiffs state that errors, omissions, and deficiencies in the Design Documents caused an excessive and unreasonable amount of RFIs and, ultimately, changes to be issued on the Project.
[86] The defendant sought particulars about which specific errors, omissions and deficiencies caused the excessive RFIs and changes to be issued on the Project, and identification of which particular RFIs were issued as a result of such alleged errors, omissions, and deficiencies.
[87] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 36
[88] Paragraph 36 pleads:
- As of February 28, 2021. over 1.800 RFIs were issued on the Project, resulting in the following:
(a) 1.300 Change Requests ("CRXs"):
(b) 233 Change Notices ("CNs");
(c) 211 Supplemental Instructions ("SIs"):
(d) 515 Change Directives ("CDs"); and
(e) 567 Change Orders ("COs").
[89] The defendant sought specifics of the Change Requests, Change Notices, Supplemental Instructions, Change Directives and Change Orders that were issued as a result of the alleged KPMB errors, omissions and deficiencies.
[90] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 40
[91] Paragraph 40 pleads:
- In addition and in the alternative, KPMB knew or ought to have known that the design and drawings were not complete. coordinated, correct, constructible, fit for their intended purpose or free from errors, omissions, and deficiencies, in a manner which allowed for completion of the Project within the milestones of the Agreement, the Construction Contract, the Design Timetable. or by the Substantial Performance date and within the Owner's Budget.
[92] The defendant sought to have the plaintiffs specify the design drawings that KPMB knew or ought to have known were not complete, coordinated, correct, constructible, fit for their intended purpose or free from errors and deficiencies.
[93] The Response to Demand for Particulars provided:
The particulars with respect to the design errors, omissions, and deficiencies are set out in the Requests for Information (“RFIs”), Submittals, Change Directives, Contemplated Change Notices, Supplemental Instructions, Change Requests, Change Orders, the RFI Log, Submittal Log, and Change Log (the “Change Documentation”), all of which is in the possession of and known to KPMB. In Mr. McFarland’s Responding Affidavit, he also attached copies of the Change Documentation in Exhibits “C” through “F”, as they relate to RFI-525, CCN-062, CRX-116, and CO-114, which is an example of the type of Change Documentation packages (the “Change Packages”) your client was intimately involved in preparing, proposing, and recommending.
Your client also attended the Owner, Architect, and Contractor Meetings, received copies of the OAC Meeting Minutes, and received copies of the Monthly Reports prepared by the construction contractor (“PCL”). Example copies of the OAC Meeting Minutes and Monthly Reports were attached as Exhibits “I” through “L” of Mr. McFarland’s Affidavit.
Further, for clarity and ease of reference, the Change Log, which has always been in your client’s possession and was attached as Exhibit “H” of Mr. McFarland’s Affidavit, contains the reason for change. To be clear, with respect to design errors, omissions, and deficiencies, each and every change identified as “Design Coordination” in the Change Log is being claimed against KPMB as resulting from a design error, omission and deficiency. Your client has in its possession the Change Packages for each of the “Design Coordination” issues being claimed against your client. As such, KPMB has within its power, possession and control all of the information needed to respond to these related particulars requests.
Paragraph 41
[94] Paragraph 41 pleads:
- Furthermore, KPMB had a duty to identify and/or warn the Plaintiffs that the design and drawings included errors, omissions, and deficiencies in order to mitigate the parties damages, which duty KPMB breached when it failed to do so, causing the Plaintiff's to incur the damages claimed herein. Instead, KPMB maintained that such design and drawings are free from errors, omissions, and deficiencies, which caused continued and ongoing damages to be suffered by the Plaintiffs.
[95] The defendant sought to have the plaintiffs specify the particulars of KPMB's failure to warn the plaintiffs.
[96] The Response to Demand for Particulars provided:
They are not proper requests for the reasons set out in our client’s Response to the Demand for Particulars. In our view, they are drafted too broadly, deficiently, and not capable of being answered. Further, we disagree that you require the particulars sought in order to plead. In any event, due to the lack of specificity provided by KPMB, any response will inevitably lead to ambiguity in what is being sought.
Paragraph 42-44
[97] Paragraphs 42-44 plead:
- As a result of the relationship between the parties, KPMB owed the Plaintiffs the duty of honesty and good faith and the duty to exercise the power or discretion. In addition to the special relationship between the parties, these duties are based on, among other things:
(a) KPMB had the ability to exercise some discretion or power with respect to the design, installation and/or construction of the Project; and
(b) KPMB unilaterally exercised that power and the acts and/or omissions that followed are affecting the interests of the Plaintiffs.
At all material times. KPMB was required to look after the best interests of the Plaintiffs and it failed to do so.
KPMB failed to meet its fiduciary duties for the reasons described above, and such other reasons that will be particularized prior to trial.