Court File and Parties

Court File No.: CV-22-3288 Date: 2024/04/18 Superior Court of Justice – Ontario

Re: William Thompson, Michelle Thompson and 1376868 Ontario Ltd., Plaintiffs And: The Corporation of the Township of Perth East and Wesley Reidt, Defendants

Before: Justice M.A. Cook

Counsel: R. Sekhon, Counsel for the Plaintiffs E. Durst for the Defendants

Heard: December 22, 2023

Endorsement

[1] The plaintiffs seek an order pursuant to r. 30.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requiring the defendant to produce in this action all relevant by-laws passed by the defendant (or its predecessor) under the Planning Act, Municipal Acts and Building Code Act, together with notices, minutes of meetings, correspondence, memos, staff reports, staff notes, building permits, inspection reports, certificates, and orders that are relevant to the properties at issue in the action for the period from January 1, 1966 to present.

[2] The defendant says it has gone beyond its production obligations in this matter and has produced every document in its possession, power, and control relating to the plaintiffs’ properties, whether or not relevant to an issue in the action and asks that the motion be dismissed.

History of the Litigation

[3] The plaintiffs own two properties near Listowel, Ontario. The first property is known municipally as 8512 Perth Line 86, R.R. #4, Listowel, Ontario and is referenced in the statement of claim as the "Subject Property". There is a house on the Subject Property. The second property is known as Part Lot 6, Con 14, Mornington as in R276915; t/w R126742, Perth East. This property is referenced in the statement of claim as the "Golf and Truss Property".

[4] In the spring of 2019, the plaintiffs decided to renovate the house on the Subject Property.

[5] On or about April 30 2019, the defendant Township of Perth East (the “Township”) issued a building permit for the renovation of the house on the Subject Property.

[6] The plaintiffs allege that, in reliance on the building permit, they demolished part of the house. The plaintiffs say that, shortly after the demolition, the Township advised them that framing on the reconstruction project could not begin. According to the plaintiffs, the house has been in a state of partial construction since 2019, and that the house is now beyond repair.

[7] The plaintiffs issued a statement of claim dated April 3, 2022 by which they claim damages of $1,000,000.00 against the Township and a “declaration” that the Township issue a building permit to reconstruct the house on the Subject Property. The thrust of the plaintiffs' claim is that the Township is liable in negligence, misrepresentation, want of care and breach of duty for issuing a building permit for the house renovation, and then refusing to allow the plaintiffs to proceed. The plaintiffs allege that they would not have partially demolished the existing house but for the authorization reflected in the building permit.

[8] The Township denies any liability in this matter, pleading that it has not revoked the building permit, nor has it issued an order to comply or work order. The Township pleads that the plaintiffs failed to satisfy survey conditions of the building permit, and by demolishing the legally non-conforming house situated on the Subject Property before complying with the permit conditions, the house cannot be rebuilt. The Township further pleads that the action is statute-barred under the Building Code Act, 1992, SO 1992, c. 23, the Municipal Act, 2001, SO 2001, c. 25, and the Limitations Act, 2002, SO 2002, c. 24, Sch. B.

[9] On August 20, 2022, the parties agreed to what the plaintiffs describe as a discovery plan. It is a single page document that indicates that the parties agree to comply with Rule 30 in respect of the scope of documentary discovery. It does not provide any particulars about the issues in the action or the appropriate scope of documentary discovery.

[10] The parties exchanged affidavits of documents in September 2022.

[11] Examinations for discovery were scheduled for November 2-3, 2022. The plaintiffs allege that the examinations did not proceed due to the Township's "woefully inadequate" affidavit of documents and documentary production.

[12] The plaintiff says that they have made repeated requests for the Township to deliver a further and better affidavit of documents listing all documents relevant to both the Subject Property and the Golf and Truss Property going back to 1966.

[13] By their Notice of Motion, the plaintiffs seek:

a. All municipal records relating to the Subject Property and the Golf and Truss Property including: i. Building permits; ii. Notices; iii. Inspection reports; iv. Certificates; and v. Orders; b. All by-laws passed by the Township under the Planning Act, Municipal Acts and Building Code Act; c. Administrative communications; d. Correspondence; e. Memos; f. Staff reports; g. Staff notes; and h. A particularized list of Schedule C documents relevant to the litigation that are no longer in the Township's possession;

[14] In an effort to resolve the motion, the Township agreed to locate and produce all documents in its power, possession, and control related to the Subject Property and the Golf and Truss Property, without prejudice to its position that the additional documents are not relevant to the action.

[15] On December 5, 2023, the Township produced a Supplementary Affidavit of Documents to the plaintiffs listing what its’ Chief Building Official, Wesley Reidt, says are all of the documents relating to both the Subject Property and the Golf and Truss Property in the Township's power, possession, and control.

[16] The plaintiffs remain unsatisfied. While the plaintiffs acknowledge receipt of the additional documents listed in the Township’s Supplementary Affidavit of Documents, they say that production remains deficient. At the hearing of the motion, the plaintiffs sought an order compelling the Township to deliver a further and better affidavit of documents "including all relevant by-laws passed under the Planning Act, Municipal Acts and Building Code Act, notices, minutes of meetings, correspondence, memos, staff reports, staff notes, building permits, inspection reports, certificates, orders that are relevant to the Subject Properties, the claims plead and the issues raised for the period January 1, 1966 to date.”

Law and Analysis

[17] The plaintiffs move under r. 30 governing documentary disclosure. Rule 30 must be read in conjunction with rr. 29.1.03 (governing the requirement for a discovery plan) and r. 29.2.03 (governing proportionality).

[18] I will start with the need for the discovery plan. Rule 29.1.03 provides:

Requirement for Plan

29.1.03 (1) Where a party to an action intends to obtain evidence under any of the following Rules, the parties to the action shall agree to a discovery plan in accordance with this rule:

1. Rule 30 (Discovery of Documents)…

Timing

(2) The discovery plan shall be agreed to before the earlier of, (a) 60 days after the close of pleadings or such longer period as the parties may agree to; and (b) attempting to obtain the evidence. O. Reg. 438/08, s. 25.

Contents

(3) The discovery plan shall be in writing, and shall include, (a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action; (b) dates for the service of each party's affidavit of documents (Form 30A or 30B) under rule 30.03; (c) information respecting the timing, costs and manner of the production of documents by the parties and any other persons; (d) the names of persons intended to be produced for oral examination for discovery under Rule 31 and information respecting the timing and length of the examinations; and (e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action. O. Reg. 438/08, s. 25.

[19] The document signed by the parties on September 2, 2022 is not a discovery plan made in accordance with the Rules. While the parties’ approach to discovery planning may reflect regrettably widespread practice, there is nothing about a document which merely commits the parties to compliance with the Rules that satisfies the purpose or intent of r. 29.1.03.

[20] More than thirteen years ago, Master McLeod (as he then was) observed in Lecompte v Doran, 2010 ONSC 6290, at para. 14 that "[d]iscovery planning is intended to permit the parties to map out the most efficient and effective way to organize the production and discovery needs of the particular action having regard to the complexity of the records, the issues in dispute and the amounts at stake. It cannot be an adversarial exercise."

[21] The requirements of r. 29.1.01 are mandatory. In the absence of a discovery plan made in accordance with the Rules, the Court may refuse to grant relief on a motion under r. 30, or award costs: r. 29.1.05.

[22] Had the parties engaged in any discovery planning in this case, they would either have reached an agreement about the appropriate scope of production for this case or addressed the matter at an early stage under r. 29.1. Instead, the litigation has been stalled for over a year while the parties engaged in a protracted and expensive exchange of correspondence leading to this motion. This motion is precisely what discovery planning is mean to avoid: Lecompte v Doran, supra at para. 15

[23] Discovery planning and discovery is informed by principle of proportionality. Proportionality in discovery is governed by r. 29.2.03:

General

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.

[24] Within that broader framework, I now turn to r. 30. The plaintiffs rely on r. 30.06 which states:

30.06 Where the court is satisfied by any evidence that a relevant document in a party's possession, control or power may have been omitted from the party's affidavit of documents, or that a claim of privilege may have been improperly made, the court may, (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

[25] Rule 30.06 is discretionary. If the record demonstrates that the Township may have omitted a relevant document in its possession, control or power, the Court may exercise its discretion to remedy the omission. The exercise of discretion is informed by, among other things, relevance, proportionality, and the goal of security the just, most expeditious and least expensive determination of the action on its merits: rr. 1.04, 29.2.03.

[26] I now return to consider the plaintiffs’ production request, which I reproduce here:

“all relevant by-laws passed under the Planning Act, Municipal Acts and Building Code Act, notices, minutes of meetings, correspondence, memos, staff reports, staff notes, building permits, inspection reports, certificates, orders that are relevant to the Subject Properties, the claims plead and the issues raised for the period January 1, 1966 to date.”

[27] The first thing to note about the plaintiffs’ request is that it purports to capture documents relevant not only to the issues in the action but broadly to the Subject Property and Golf and Truss Property. The plaintiffs are not entitled to simply demand the Township to disclose everything that it has, or ever had that relates to either the Subject Property or the Golf and Truss Property. For the purpose of discovery, a document is relevant only if it relates to a matter in issue in the action, as defined by the pleadings: r. 30.02. Only if the request meets the relevance threshold does the inquiry continue to consider proportionality and materiality.

[28] The relief sought by the plaintiffs relate to the house on the Subject Property. When the defendants received the plaintiffs’ request for “all relevant by-laws passed under the Planning Act, Municipal Acts and Building Code Act,” they sought clarification as to why the said documents were relevant. The plaintiffs’ response was that “zoning is relevant as the Township has removed residential use as a permitted use under the zoning by-law.”

[29] While the statement of claim alludes to the zoning of the Subject Property, it does not plead any material facts connecting the past or current zoning of either the Subject Property or the Golf and Truss Property to their allegation that the Township has prevented or prohibited the house reconstruction. However, the Township pleads at paragraph 18 of the statement of defence that, "in light of the legal non-conforming nature of the [Subject Property] the [plaintiffs] were aware of the limitations on construction".

[30] Given the pleadings, I find that the question of whether the house constituted a legally non-conforming use of the Subject Property at the time the building permit was issued is a live issue in the proceeding. Accordingly, the Township had an obligation to disclose in its affidavit of documents all documents in its power, possession, and control that are relevant to the question of whether the house was a legally non-conforming use of the Subject Property at the time permit 2019-0092 was issued.

[31] The plaintiffs have failed to demonstrate any other of the requested documents are relevant to any issue pleaded in the action.

[32] In his affidavit, the Chief Building Office of the Township, Wesley Reidt, affirms his knowledge, understanding and belief that:

a. the Township has no records regarding a change in zoning of the Subject Property; b. based on his review of the Township's files, there was an amendment to the Official Plan in or around 2001 to re-zone the Golf and Truss Property from "agricultural" to "recreational"; c. the Township has produced all documents in its power, possession, and control that relate to the zoning of the Subject Property and the Golf and Truss Property; and d. the Township's current zoning by-law, specifically by-law no. 30-1999 is a public record available from the Township's website.

[33] Given Mr. Reidt’s unchallenged evidence, I find that there is no evidence that the Township has omitted relevant documents from its affidavits of documents relating to the issue of legal non-confirming use at the time the building permit was issued, with the exception of the Township’s current zoning by-law no. 30-1999. While I appreciate the current zoning by-law is a public record, the Township nonetheless has an obligation to disclose it with Schedule A of its affidavit of documents and produce a copy of it upon request.

Disposition

[34] The Township shall provide a further supplementary affidavit of documents disclosing the Township’s current zoning by-law, specifically by-law no. 30-1999 and produce a complete copy of it upon request by the plaintiffs.

[35] The balance of the plaintiffs’ motion is dismissed.

[36] I agree with the plaintiffs that the parties will need to update their discovery plan, but I decline to endorse the document presented as an updated discovery plan because it does not comply with the Rules. The parties are urged to meet and confer on an updated discovery plan in a manner consistent with the Rules. If the parties are unable to agree to an updated discovery plan, they are at liberty to seek directions. I am not seized.

[37] Given the parties’ failure to engage in meaningful discovery planning in this matter, each shall bear its’ own costs of the motion.

Justice M.A. Cook Date: April 18, 2024