Court File and Parties

Court File No.: CV-19-613703 Date: 2023 05 26 Superior Court of Justice - Ontario

In the Matter of: the Construction Act, RSO 1990, c C.30, as amended

Re: LEBLON CARPENTRY INC., Plaintiff And: QH RENOVATION & CONSTRUCTION CORP. carrying on business as QH DESIGN-BUILD, QI TANG and ROYAL BANK OF CANADA, Defendants

Before: Associate Justice Todd Robinson

Counsel: J. Frustaglio, for the plaintiff (moving party) J. Margie, for the defendant, Qi Tang K. Zilic, for the defendant, QH Renovation & Construction Corp.

Heard: March 6, 2023 (by videoconference)

Reasons for Decision (Motion to Extend Timetable)

[1] Non-compliance with court-ordered timetables in civil litigation has become a chronic problem in Toronto Region. It is now far too common for parties to breach timetable orders despite the options available to them when unable to meet an ordered deadline, such as varying the timetable on mutual consent of all parties or, where consent cannot be secured, proactively seeking court orders to vary the timetable by way of motion, case conference, or hearing for directions. Instead, post-breach extensions are sought with minimal or no explanation for the default as though the breach of a court order is somehow inconsequential.

[2] This motion before me deals with non-compliance with a timetable order made in the reference before me under the Construction Act, RSO 1990, c C.30. However, the issue of non-compliance with court-ordered timetables is not isolated to lien actions. It is an ongoing concern throughout civil litigation in Ontario in both lien and non-lien actions alike.

[3] When parties fail to comply with court-ordered timetables, it creates a tension between substantive and procedural fairness in litigation. On the one hand, the court’s preference is for all actions to be decided on their merits with all relevant and available evidence before the trier of fact. On the other hand, achieving just results requires a litigation process that is fair to all judicial participants. That requires the court to ensure that it is always controlling its own processes and guarding against disregard and indifference by parties to the rules of court and, as in this case, court orders.

[4] On this motion, Leblon Carpentry Inc. (“Leblon”) seeks an order granting it leave to extend an ordered deadline to provide answers to undertakings from its examination for discovery. Specifically, Leblon seeks an extension nunc pro tunc to August 31, 2022 (the date on which it says sufficient answers were given), plus an order granting it a further thirty (30) days to answer one outstanding undertaking. Qi Tang opposes, seeking an order precluding Leblon from relying at trial on any of the information in the answers to undertakings. QH Renovation & Construction Corp. c.o.b. as QH Design-Build (“QH Design”) takes no position on the motion.

[5] There are two main issues on this motion, which are interconnected:

(a) Has Leblon provided a sufficient explanation for its non-compliance with the ordered deadline for answers to undertakings?

(b) Should Leblon be permitted to rely on the answers it has provided, albeit late, and be further permitted to provide the outstanding answer and/or further and better answers?

[6] I am dismissing Leblon’s motion. Lien actions are statutorily prescribed to be as far as possible of a summary character. Leblon gave only a modest number of undertakings when examined for discovery by Ms. Tang, all of which were fairly straightforward. In bringing this motion, Leblon has failed to provide a proper explanation for its inability to meet the court-ordered deadline for answering those undertakings. The record does not support that Leblon made honest and meaningful efforts to provide responsive answers in a timely fashion, particularly given the specific undertakings. Despite Leblon’s arguments on this motion, many of the answers provided are clearly insufficient.

[7] In my view, this is a case where a further “kick at the can” is not justified and, accordingly, the court’s indulgence should not be granted. Parties that do not take their litigation obligations seriously cannot expect the court to excuse breaches of court orders, including timetable orders, particularly in the context of summary lien proceedings.

Analysis

[8] This action arises from a substantial home construction project at a property in Toronto owned by Qi Tang. Ms. Tang entered into a contract with QH Design for the demolition of the existing house and construction of a new two-storey residential house. Leblon was subcontracted by QH Design to frame the house and install Tyvek house wrap.

[9] Both QH Design and Leblon preserved and perfected liens against title to Ms. Tang’s property. By operation of the Construction Act, Leblon’s lien action became subsumed in the reference that is now before me.

[10] There is no right to documentary or oral discoveries in a lien action. Those procedures are not contemplated by the Construction Act or its regulations. Discoveries formally require consent of the court to proceed. In the course of this reference, the parties agreed that discoveries were needed in the lien actions, so I granted leave for discoveries. A timetable was fixed in this action for completing examinations for discovery, as well as for all answers to undertaking to be given within sixty (60) days from the date of examination.

[11] A representative of Leblon was examined for discovery on April 14, 2022 by both Ms. Tang and QH Design. None of the parties have provided me with clear charts outlining all of Leblon’s undertakings. Submissions were made based on a combination of the charts prepared by Leblon’s counsel, subsequent email exchanges discussing missing undertakings and deficiencies in the answers given, and extracts from the discovery transcript. Based on the record before me, it appears that a total of fourteen undertakings were given: nine during the examination by Ms. Tang and five during the examination by QH Design.

[12] At a hearing for trial directions before me on May 2, 2022, a firm deadline to provide all answers to undertakings was fixed for June 10, 2022. Leblon failed to comply with that ordered deadline.

[13] By the hearing for trial directions before me on August 8, 2022, nearly a month after the deadline, Leblon remained in breach of my order. Leblon’s counsel confirmed that Leblon intended to comply and proposed providing answers to undertakings by August 15, 2022. Ms. Tang was not prepared to agree to an extension at that hearing. Ultimately, Ms. Tang refused to consent to or accept the late delivery of Leblon’s answers to undertakings. She took the position that leave of the court was required and that, in any event, the late answers provided by Leblon are insufficient. This motion was thereafter brought.

Issue 1: Has Leblon provided a sufficient explanation for its non-compliance with the ordered deadline for answers to undertakings?

[14] As I previously held in Smith v. Hudson’s Bay Company, 2019 ONSC 234, at para. 28, court orders are not mere suggestions that litigants may choose to follow if they wish. Whether a timetable order is made on consent, on an unopposed basis, or following opposed submissions, it remains an order of the court. Parties are expected to make honest and meaningful efforts to comply with all court orders, including timetables. That expectation is squarely addressed in subrule 3.04(4) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). It provides that the consequences for failing to comply with a timetable include a stay of the proceeding, dismissing the proceeding or striking out a defence, or any other order as is just.

[15] Parties will often agree to vary a court-ordered timetable on consent, which is expressly permitted by subrule 3.04(1) of the Rules. Discussions between counsel or parties, in which the circumstances and the need for a reasonable extension are explained, are commonly sufficient for the parties to address the matter themselves. Parties to litigation must be reasonable in their conduct, particularly given the current pandemic-related civil backlog across Ontario. Unnecessary or unreasonable motions only serve to exacerbate that backlog, and parties often find that such motions are met with adverse cost awards. However, when parties acting reasonably cannot agree, court intervention becomes necessary.

[16] When an extension to a court-ordered timetable is opposed, the party seeking the extension must provide an explanation for why the deadline(s) cannot be met. In my view, the requirement for an explanation is even greater if an extension is sought after the order has been breached. There must still be an explanation for why the deadline(s) could not have been met, but it is also incumbent on the breaching party to explain why a default could not have been avoided. That explanation is, in my view, necessary to properly assess the justness of excusing the breach and granting an extension.

[17] Here, the totality of the explanation for non-compliance by Leblon is a single paragraph in a law clerk’s affidavit, which states as follows:

Despite the Plaintiff’s best efforts to locate the required information and/or documents as part of its answers to undertakings, and to provide the same as expeditiously as possible, it was unable to do so within the prescribed timelines ordered in the aforementioned Trial Directions.

[18] The rules of court apply in lien actions except to the extent of any inconsistency with the Construction Act and its regulations. Subrule 4.06(2) of the Rules provides that an affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where the Rules provide otherwise. Subrule 39.01(4) of the Rules does provide that an affidavit for use on a motion may contain statements of the deponent’s information and belief with respect to facts that are not contentious, but the source of the information and the fact of the belief must be specified in the affidavit.

[19] The law clerk’s affidavit does not comply with either subrule 4.06(2) or subrule 39.01(4). Although para. 1 of the affidavit indicates that the law clerk has “personal knowledge of the matters hereinafter deposed to”, there is nothing in the affidavit supporting that she reasonably has any personal knowledge of the efforts taken by Leblon to comply with its undertakings or the reasons for Leblon’s inability to meet the ordered deadline. Leblon does not argue that she does. No source of her information and belief is stated.

[20] The purported “best efforts” carried out by Leblon to answer undertakings within the ordered timelines, as referenced by the law clerk, are unexplained. There is nothing beyond the law clerk’s bare statement in the record before me. No cogent evidence has been tendered supporting any efforts by Leblon to answer its modest number of undertakings nor any convincing explanation for its inability to provide answers to those undertakings within four months following its examination for discovery.

[21] Leblon argues that my focus should be on the merits and the lack of prejudice to Ms. Tang (and QH Design) from allowing the answers to stand. I disagree. They are factors that I must consider, but they are not the only ones. If a proper explanation for breaching a court order were only required when there is prejudice to another party, then parties could breach court orders with impunity in many, if not most, cases. To borrow phraseology from other case law, the court cannot be a paper tiger. Excusing a party from breaching a court order on an opposed motion without requiring a reasonable or sufficient explanation for the breach would do just that.

[22] Leblon has failed to provide any real explanation for its inability to provide timely answers to its undertakings or for breaching the court-ordered timetable. That failure is a significant factor on this motion.

Issue 2: Should Leblon be permitted to rely on the answers it has provided with an opportunity to provide the outstanding answer and further and better answers?

[23] Leblon argues that it should be permitted to rely on the answers it has provided in its responses given on August 15 and 31, 2022. At a minimum, Leblon argues that leave should be granted to rely on those answers that Ms. Tang has not specifically challenged in response to this motion.

[24] Leblon was examined separately by QH Design and Ms. Tang. QH Design takes no position on this motion. No submissions were made on the answers provided to the five undertakings requested by QH Design during its examination of Leblon. I have no difficulty in permitting Leblon to rely on those answers. They were not the subject matter of the opposed portion of this motion.

[25] I do, however, have difficulty with bifurcating the answers to the undertakings requested by Ms. Tang into categories of “challenged” and “unchallenged”. Leblon is correct that Ms. Tang has only specifically challenged the sufficiency of some answers. However, she has not conceded that any of the late-provided answers should be admitted. To the contrary, her position is clear that this motion should be dismissed and that an order should be made precluding Leblon from relying on information subject to those undertakings. That position is expressly set out in the responding factum. Alternatively, if leave is granted to extend the time for Leblon to answer its undertakings, Ms. Tang seeks an order that such extension be conditional on Leblon providing further and better answers that are responsive to the undertakings actually given.

[26] It seems to me, especially in a summary lien proceeding such as this one, that I must either accept that Leblon should be granted an extension or dismiss the motion. In my view, it is inconsistent to permit a nunc pro tunc extension for some answers, but not others. Leblon should either be relieved from breaching my order or it should not.

[27] There is some dispute over the scope of undertakings given and the sufficiency of the answers provided. I need not delve too far into that dispute. In my view, it is enough that key undertakings that ought readily to have been answered by Leblon have either not been answered or have clearly been insufficiently answered, with no explanation for Leblon’s failure to answer them. Leblon’s approach to its undertakings supports that it not taken seriously its obligation to answer them. Three examples suffice to make the point.

[28] First, Leblon acknowledges that it undertook to review records and produce any documents supporting Leblon’s last date on site. As of August 15, 2022, Leblon advised that it was “in process of locating further additional documents.” No further answer was provided.

[29] Lien claimants have the evidentiary onus of proving timeliness of their liens. As a subcontractor, Leblon’s date of last supply is central to whether its lien is timely, since the statutory deadlines to preserve and perfect its lien flow directly from that date. Leblon’s lien was registered in December 2018. Leblon’s affidavit of documents was served over a year before it was examined for discovery. Leblon reasonably ought to have included any documents supporting the date of last supply in its productions. It was nevertheless asked about documentary support during discovery. No explanation has been provided for why Leblon was unable to locate any further documents within four months after its examination for discovery and approaching four years after the lien was preserved, particularly after the ordered deadline had already passed.

[30] Second, Leblon also acknowledges that it undertook to make best efforts to advise (i) the date or dates that Leblon provided QH Design with the price for certain changes, (ii) the date Leblon was authorized to proceed with the changes, and (iii) the dates that the changes were performed. Leblon’s answer, provided on August 15, 2022, was that the price was provided “in or around late July / early August 2018”, that Leblon was authorized to proceed with the changes “in or around August / September 2018”, and that the work was performed “in or around August / September 2018 to November 2018”.

[31] I agree with Ms. Tang that Leblon’s answer is clearly insufficient. Leblon has the evidentiary onus of proving that changes to its subcontract scope of work were authorized and completed. Leblon undertook to make best efforts to provide specific dates, not generic date ranges. It ought reasonably to know or be able to confirm when it performed the work that is the subject matter of its claim. Having given the undertaking on a best efforts basis, it was otherwise incumbent on Leblon to explain why specific dates could not be confirmed and what “best efforts” were undertaken to confirm them. The insufficiency of the answer is only heightened by Leblon having had the benefit of four months to review its records before answering.

[32] Third, I am satisfied that Leblon did undertake to cross-reference work identified on an invoice with the original drawings to show where and what changes occurred and to provide a description of the changes. That undertaking was not included in Leblon’s undertaking chart when answers were initially provided on August 15, 2022, despite Leblon’s counsel having confirmed the undertaking during the examination. Ms. Tang’s counsel flagged the missing undertaking on August 24, 2022. No answer was provided until August 31, 2022. The answer consisted of one elevation drawing and one floor plan drawing with highlighting, but no other apparent notations, accompanied by the following written answer:

a. See attached Elevation Drawing and Floor Plan dated August 31, 2022 with Yellow Highlights in respect of the Changes to the Original Drawing issued for permit.

i. The Changes were completed in accordance with the Change Order signed by the homeowner dated August 28, 2018 and the Description of Work completed is outlined in Leblon Invoice 547.

[33] I agree with Ms. Tang that the answer provided is clearly insufficient. I was directed to the referenced invoice during argument and am satisfied that simply referring to the descriptions of work in the invoice alongside the highlighting does not assist in detailing what work was performed and where specifically it occurred.

[34] During Leblon’s examination for discovery, there was an exchange between counsel about the scope of undertaking. Ms. Tang’s counsel was, in my view, clear about the nature of the request for a description of work and the need for specificity. Leblon’s counsel confirmed his understanding and gave the undertaking. The key part of their exchange is as follows:

MR. FRUSTAGLIO: Yes. So, John, I understand what you are asking. I think what you are asking for is to take the initial drawings that we quoted and cross-reference the work on invoice 547 and to indicate on those drawings where those changes were made.

MR. MARGIE: And, like, when you say, like, you know, we went through it, but it says change first floor layout, right?

MR. FRUSTAGLIO: Yes.

MR. MARGIE: That's really the powder room. So, like, indicate to us that that's the powder room, we moved the window from one side to the other, we built this little wall between -- next to the toilet. We made the powder room wider. You know, stuff like that. Like, indicate to us what it is that you did. You've got to have some description so that somebody can follow along here.

MR. FRUSTAGLIO: That's fine, John. We'll do it. So to the best of our abilities, we'll take it --

MR. MARGIE: That's fine.

MR. FRUSTAGLIO: We'll take invoice 547 and cross-reference that work with the original drawings to show where the changes occurred and what occurred.

MR. MARGIE: Right.

[35] There is no ambiguity about what Leblon undertook to do. Leblon did not do it.

[36] Answers to undertakings must be responsive to the actual undertakings given and must demonstrate an honest attempt to obtain and provide the information and documents sought: Willi v. Chapple, 2008 ONCA 188, at para. 7. Clear questions should be answered with clear, understandable, and meaningful answers. Ambiguous, oblique, non-responsive, or unhelpful answers are not answers at all.

[37] Based on the record before me, Leblon has failed to comply with its undertaking obligation. It has not made earnest efforts to meaningfully answer the undertakings given during Leblon’s examination by Ms. Tang. It gave only a modest number of undertakings during its examination. It was aware of the ordered deadline to answer them. There is no evidence of any communication explaining the need for an extension or advising opposing counsel that the deadline could not be met. Instead, Leblon breached the order.

[38] Nearly a month after the deadline, when appearing before me at a scheduled hearing, Leblon remained in breach of the order. Despite committing at that hearing to answering all outstanding undertakings by August 15, 2022, Leblon provided complete answers to only some of the undertakings and partial or incomplete answers to others. Notably, its undertaking chart omitted several undertakings that had been given. Ultimately, Leblon failed to provide proper answers to several important undertakings, including the three discussed above.

[39] This is not a situation where Leblon gave a substantial number of complex undertakings for which the required work made a court-ordered timetable unrealistic. During the examination by Ms. Tang, Leblon gave only nine undertakings. In my view, all of them sought information and evidence that ought to have been readily available or accessible to Leblon. None of the undertakings were particularly complex.

[40] By operation of s. 58(4) of the Construction Act, I have all the jurisdiction, powers and authority of the court to try and completely dispose of the actions subsumed in the reference before me. As the reference associate judge, I will be the trier of fact in this case. Admissibility of evidence at trial is accordingly within my discretion.

[41] Subrule 53.08(1) of the Rules is instructive here. It provides a conjunctive test for admitting evidence at trial that is only admissible with leave of a trial judge. Specifically, it provides that leave may be granted if the party responsible for the applicable failure satisfies the judge that (a) there is a reasonable explanation for the failure, and (b) granting the leave would not cause prejudice to the opposing party that could not be compensated for by costs or an adjournment or cause undue delay in the conduct of the trial.

[42] Leblon has provided no convincing explanation for its inability to answer its straightforward undertakings by the court-ordered deadline. Even with the additional time following that deadline, Leblon still failed to meaningfully comply. Leblon has not convinced me that my ordered deadline should not be enforced against it.

[43] Extension of the deadline to answer undertakings given at the examination of Leblon by Ms. Tang is accordingly denied. In addition, Leblon shall not be entitled to rely at trial on any information or evidence not given or produced prior to the ordered deadline that is the subject of the nine undertakings from that examination.

[44] There is one caveat to my order. It should not be construed as barring Leblon from seeking to prove a different claim amount at trial. One of the undertakings given by Leblon was to provide an exact quantum for its claims. That undertaking was given voluntarily by Leblon’s counsel after some evidence that the preserved lien and claim amount of $72,885.00, inclusive of HST, may be inaccurate. Leblon has the evidentiary onus of proving its claim. My order does not bar it from pursuing a lower amount or seeking to amend to claim a higher amount, subject to the restrictions in this decision on evidence that may be relied upon to prove it.

[45] I previously ordered Leblon to prepare and serve a lien quantification. I understand that order was complied with prior to discoveries. If there is now a dispute over the sufficiency of that lien quantification, then it may be spoken to at a future hearing for trial directions.

Costs

[46] Ms. Tang has been successful in opposing this motion and is entitled to her costs. Ms. Tang seeks her partial indemnity costs in the amount of $2,455.18, including HST. Leblon sought substantially the same costs in its own costs outline. The amount sought is thereby within Leblon’s reasonable expectations. The hours spent and rates claimed by Ms. Tang’s lawyers in opposing this motion were not specifically challenged, but I find them to be reasonable and proportionate in the circumstances. I find no basis to reduce the quantum of the costs requested.

Disposition

[47] For the above reasons, I order as follows:

(a) Leblon’s motion is dismissed.

(b) Leblon shall not be entitled to rely at trial on any information or evidence that is subject to the undertakings requested by Ms. Tang during Leblon’s examination for discovery, unless such information or evidence had already been provided or produced prior to June 10, 2022.

(c) Leblon shall pay to Ms. Tang her costs of this motion fixed in the amount of $2,455.18, including HST, payable within thirty (30) days.

(d) This order, which forms part of my procedure book for this reference, is effective without further formality.

ASSOCIATE JUSTICE TODD ROBINSON DATE: May 26, 2023