COURT FILE NO.: 26384/14
DATE: 2022-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIA STEPHENS AND JOHN STEPHENS
Plaintiffs/Responding Party
– and –
920857 ONTARIO INC C.O.B AS CREATIVE MECHANICAL AND 920857 ONTARIO INC C.I.B. AS CREATIVE GLASS
Defendants/Moving Party
Matthew M. Shoemaker, for the Plaintiffs/Responding Party
Paul Paciocco, for the Defendants/Moving Party
HEARD: January 20 and February 10, 2022
VARPIO J.
DECISION ON MOTioN
[1] This is a motion known colloquially as a "refusals and undertakings" motion.
[2] The lawsuit involves the building of a house. The plaintiff homeowners are in their mid-70's.
[3] The defendants are contractors.
[4] During the action, the plaintiffs were examined and undertook to give "best efforts" to locate two sub-contractor witnesses and provide will-states for them. It appears from the materials that at least one of these witnesses was working as a "retired plumber" or other such basis.
[5] The parties appear to agree that the relevant undertakings (numbers 9 and 10) stated "Make best efforts to provide a will say statement from [witness name] with respect to the discussions had about any permits to be pulled and electrical work to be done".
[6] The plaintiffs answered their undertakings via letter on October 21, 2020. With respect to the two impugned undertakings, Mr. Shoemaker for the plaintiffs answered: "We will provide a will-say statement if this matter goes to trial, at least 30 days prior to trial, provided we are able to locate [the respective witness".
[7] On April 28, 2021, Mr. Paul Skeggs for the defendants wrote to Mr. Shoemaker stating, inter alia:
We are requiring undertakings 9 and 10 be satisfied. Please advise forthwith if your clients intend to satisfy these undertakings or if we should have a Court determine the issue.
[8] On June 3, 2021, Mr. Skeggs wrote to Mr. Shoemaker stating:
We have not heard from you with respect to our correspondence dated April 28, 2021. We wish to move this matter forward.
If we have not heard from you by June 10, 2021 at 4:00 p.m. it is our intention to file a Notice of Motion seeking that the undertakings be produced otherwise your clients' pleadings be struck.
[9] On June 10, 2021, Mr. Shoemaker responded via email stating:
All undertakings that were able to be answered were answered on October 21, 2020…
As for Undertakings 9 and 10 with respect to will say statements, those were "best efforts" undertakings. My client attempted to contact [the witnesses] without success. If you wish to attempt to contact either of them, that is open to you to do. We believe we have satisfied the undertakings given.
[10] On June 15, 2021, Mr. Skeggs responded via email:
Thank you for the e-mail. Before I may provide any advice to my client on whether I believe the "best effort" undertakings are satisfied, I require further information as to your clients' efforts. The case law is clear your client is required to "leave no stone unturned" in attempting to satisfy those undertakings; particularly, undertakings 9 and 10. [The witnesses] are key witnesses in our clients' claim. Their evidence will play an important role within the proceedings and my client has the right to avoid an ambush at trial.
[11] The plaintiffs did not respond to this email.
[12] The matter came before me on January 20, 2022. The plaintiffs filed an affidavit from a legal assistant that did not describe the efforts undertaken to find the witnesses. Instead, the affiant deposed that
[a]s can be seen in the June 10, 2021 e-mail… the Plaintiffs… made best efforts to fulfil the requests taken under advisement… to contact [the witnesses], but found no success in attempting to do so….
A response to the June 15, 2021 e-mail was not provided as the information had already been set out in both the October 21, 2020 correspondence… and further correspondence of June 10, 2021.
[13] I made an order on January 20, 2022 adjourning the matter to February 10, 2022 to enable the plaintiffs to specify the efforts undertaken to locate the witnesses.
[14] The plaintiffs filed a further affidavit from a legal assistant setting out the efforts undertaken to locate the witnesses. At paragraph 8 of the affidavit, the affiant deposed that counsel advised her that counsel had reviewed invoices given by the witnesses and called phone numbers listed upon same. The numbers were out of order. Counsel searched the internet for business numbers and found business numbers for the witnesses. Counsel called the numbers, but the numbers were out of service. Counsel searched "LinkedIn" and the name of one of the witnesses was listed as "retired". The other witness had no current contact information listed on "LinkedIn". Counsel also performed a "Canada411" search to no avail. Of note, no date was listed for when these searches were performed although the exhibits attached to the affidavit make clear that the searches were performed after the January 20, 2022 hearing date.
[15] The next paragraph of the affidavit states:
I am advised by Mr. Shoemaker and verily believe to be true that Mr. Shoemaker, as well as his client, previous to the January 20, 2022 hearing date, made best efforts to contact both [witnesses], without success.
[16] No other efforts were listed in the affidavit.
ANALYSIS
[17] Rule 31.07 of the Rules of Civil Procedure states:
Failure to Answer on Discovery
Failure to Answer Questions
31.07 (1) A party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question if,
(a) the party or other person refuses to answer the question, whether on the grounds of privilege or otherwise;
(b) the party or other person indicates that the question will be considered or taken under advisement, but no answer is provided within 60 days after the response; or
(c) the party or other person undertakes to answer the question, but no answer is provided within 60 days after the response. O. Reg. 260/05, s. 7.
Effect of Failure to Answer
(2) If a party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question as described in subrule (1), the party may not introduce at the trial the information that was not provided, except with leave of the trial judge. O. Reg. 260/05, s. 7.
Additional Sanction
(3) The sanction provided by subrule (2) is in addition to the sanctions provided by rule 34.15 (sanctions for default in examination). O. Reg. 260/05, s. 7.
Obligatory Status of Undertakings
(4) For greater certainty, nothing in these rules relieves a party or other person who undertakes to answer a question from the obligation to honour the undertaking. O. Reg. 260/05, s. 7.
[18] In Linamar Transportation Ltd. v. Johnson, [2014] O.J. No. 3483 (Div. Ct.), the Divisional Court considered an application for leave to appeal based on the failure to undertake "best efforts". The court cited Gheslaghi v. Kassis 2003 7532 at para. 7 and held that "[i]f a party and/or counsel is/are not able to discover the subject of the undertaking, he/she/it must be able to satisfy a court that a real and substantial effort has been made to seek out what is being requested by the other party."
[19] At para. 15 of Linamar Transportation, the court stated
Black's Law Dictionary (9th ed. 2004) defines best efforts as "...Diligent attempts to carry out an obligation...Best efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take."
[20] In the circumstances, the defendants take the position that the plaintiffs ought to have "cold called" other contractors in the Elliot Lake area to determine the whereabouts of the two missing contractor witnesses.[^1]
[21] Simply put, this submission is a bridge too far.
[22] To suggest that, having exhausted traditional means of locating witnesses, counsel "cold call" other contractors means that a party has to exhaust all possible avenues of location beyond those that have some reasonable prospect of success. Those who fail at endeavors often wrestle with the question of whether "I could have done more". One can almost always do more in any situation. That does not mean, however, that "doing more" is reasonable in every circumstance. I do not read the jurisprudence to suggest that "best efforts" requires "every conceivable effort". I have no evidence before me that the witnesses maintained ties with anyone in Elliot Lake or were otherwise involved in the community. Had such information been filed, I might have ordered the plaintiffs to engage in further, more individualized efforts to find the witnesses. I do not have such information before me, however, and I do not read the undertaking as requiring more than what has been done by the defendants.
[23] Accordingly, I find that the "best efforts" undertakings have been satisfied and the motion is dismissed.
COSTS
[24] Rules 57.01(1) and (2) of the Rules of Civil Procedure state:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;
(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and
(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1; O. Reg. 689/20, s. 37.
Costs Against Successful Party
(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. R.R.O. 1990, Reg. 194, r. 57.01 (2).
[25] In this case, I have no evidence that any efforts were undertaken to find the witnesses prior to January 20, 2022. The plaintiffs rely upon a bald statement from a June 10, 2021 email indicating that they attempted to locate the witnesses as being sufficient to satisfy a "best efforts" undertaking. As noted earlier in these reasons, such a bald statement is not sufficient.
[26] Accordingly, it is clear to me that the plaintiffs ought to have made better (or any) efforts prior to January 20, 2022 to find the witnesses. The defendants were required to bring this motion because it appears that the undertaking was not satisfied prior to my January 20, 2022 order.
[27] The defendants seek $1275 in costs (all inclusive), despite the fact that I dismissed the motion. Given Rules 57.01(1) and 57.01(2), and given the fact that the defendants were required to bring the motion in order to get specifics of the efforts undertaken by the plaintiffs, I hereby order that the plaintiffs shall pay $1275 (all inclusive) to the defendants within 60 days of today.
Varpio J.
Released: February 10, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIA STEPHENS AND JOHN STEPHENS
- and –
920857 ONTARIO INC C.O.B AS CREATIVE MECHANICAL AND 920857 ONTARIO INC C.O.B. AS CREATIVE GLASS
REASONS ON MOTION
Varpio J.
Released: February 10, 2022
[^1]: The missing witnesses apparently live[d] in Elliot Lake. Elliot Lake is a community of approximately 10,000 people.