REASONS FOR DECISION

J.R. MACFARLANE J.

Introduction

[1] There are two motions before the court. The first is the plaintiff’s motion for answers to undertakings from the defendant; for a further and better affidavit of documents from the defendant; and for leave to amend its statement of claim. The second is the defendant’s motion for answers to undertakings.

[2] This is an old piece of litigation commenced in 2014, arising from loss claims for fire and water damage in 2013 by the plaintiff (“132”) against its insurer (“Intact”) relating to a commercial property owned by 132 located at 391 Front Street, LaSalle, Ontario (the “Property”).

Factual Background and Litigation History

[3] In a prior decision dated May 21, 2020 (2020 ONSC 3167), King J. reviewed the “winding and complex” factual background in detail. I do not propose to repeat that here, as a summary overview of the facts will suffice.

[4] 132 is a company owned by two brothers, John and Enzo Tartaro. 132 purchased the Property on December 3, 2010 for $140,000. In June 2011, 132 entered a triple-net lease with a commercial tenant, National Floor Maintenance (“NFM”). NFM did not perform renovations to the building as required by the lease, and by December 2012 owed over $40,000 in rental arrears.

[5] A man named Salvatore Siino swore an affidavit on June 7, 2023 saying that he worked for NFM, but on cross-examination he admitted that he did not. 132 relies in part on Mr. Siino’s evidence to establish certain aspects of their claim. He says he attended at the Property about weekly. John and Enzo say they attended the Property sporadically from the purchase of the Property to the date of loss in 2013.

[6] On March 25, 2013, a fire occurred at the insured property that was discovered by the Fire Chief (who happened to be driving by) and was later determined to have been caused by arson. On the investigation that followed, it was discovered that water damage had also occurred in a separate incident. The specific date of the water damage was indeterminable, but it is estimated to have occurred on January 1, 2013.

[7] These events caused significant damage to the insured property. 132 sought to claim under the insurance policy for damages to repair the premises. At that time, the building replacement coverage under the policy issued by Intact to 132 (the “Policy”) was limited to $750,793. The building had never been inspected by Intact prior to the alleged dates of loss, and the “appraisal” that had arrived at that figure was done by software.

[8] On March 27, 2013, an inspector from the Town of LaSalle inspected the Property and summarized its condition as “[d]ue to the many areas of water infiltration, questionable structural integrity, breach of fire separations, hazards from falling materials, and fire damage, this building must be repaired, before it can be re-occupied.” The Chief Building Official issued an Order to Comply on April 2, 2013, directed at 132, requiring a comprehensive engineer’s report and prohibiting occupancy until all repairs and subsequent inspections have been completed.

[9] Over 11 years later, the Property remains derelict and vacant.

[10] John Tartaro learned from his tenant on April 2 or 4, 2013 that there had been a flood in the property at some earlier time and the tenant had shut off the water to the Property. On April 4, 2023, John and Enzo attended at the Property with Intact’s adjuster Pauline Davidson. Her notes indicate inter aila, “[s]moke damages inside but the fire chief said the building is full of mould, beams are rotting and has not been looked after. None of this damage is from the fire.” She advised 132 that they needed to report the water loss claim separately.

[11] By July 2, 2013, 132 had rejected an offer to settle the fire loss claim and had advised Intact that they would be retaining a lawyer.

[12] The fire damage incident was reported to Intact on April 1, 2013 and was assigned claim number 5350127. The water damage incident was reported to Intact on August 2, 2013. It was assigned claim number 5353194.

[13] Blank proof of loss forms were provided to 132 by Intact on May 3, 2013 and August 8, 2013. Although represented by counsel who wrote to Intact on July 18, 2013 threatening litigation, 132 did not complete any proof of loss in relation to either the fire loss claim or the water damage claim until ordered to do so by Hebner J. in 2016.

[14] On December 20, 2013, Intact paid $64,020.33, which was the amount Intact had calculated as the actual cash value of the fire repairs minus the deductible.

[15] The claim in this action was issued on July 24, 2014 seeking a declaration that the Policy was binding and indemnity under the Policy for various losses. The pleading included a claim for “damages for bad faith in the amount of $100,000” and “the sum of $300,000 for losses sustained by the Plaintiff and insured under [the Policy]”. 132 pleaded that it had “…incurred damages for the amount required to repair the damage caused by the said entry of water and fire in the amount of $200,000” and “…suffered a loss of rental income in the approximate amount of $100,000”. Although 132 pleaded that “[t]he Defendant has delayed the process of the Plaintiffs’ [sic] claim unreasonably and acted in a high handed and callous manner directed to cause harm to the Plaintiff. The Property remains in a damaged state that is not insurable due to the Defendant’s failure to indemnify”, no particulars of bad faith are pleaded. In my view, the pleading is prima facie inadequate for its want of particularity: see the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), r. 25.06(8) and Portuguese Canadian Credit Union v. 1141931 Ontario Ltd., 2012 ONCA 274, [2023] O.J. No. 1861, at para. 9.

[16] On September 26, 2014, Intact delivered its statement of defence which, inter alia, denied coverage for the water loss claim. The major source of disagreement between the parties throughout this process has been the cause and scope of the water loss recoverable under the Policy.

[17] John Tartaro has admitted that by early 2015, the Property was in complete disrepair, and had to be torn down and rebuilt. Enzo Tartaro has admitted that by the spring of 2016, they had made the decision that it was not worth putting any more money into the building on the Property.

[18] After the close of pleadings, Intact moved for summary judgment on the basis that 132 had not completed any proof of loss as required by s. 136 of the Insurance Act, R.S.O. 1990, c. I.8, and the terms of the Policy. On April 19, 2016, Hebner J. ordered that “[t]he proof(s) of loss shall be provided by the plaintiff to the defendant by May 27, 2016 at 4:30 p.m.”. On May 26, 2016, 132 completed a single proof of loss sworn by John Tartaro setting out losses totaling $650,387.14 for:

a) Water Loss ($319,103.99);

b) Fire Loss ($109,878.79); and,

c) Rental Loss ($221,404.36).

This was the first time that 132 had quantified its claim under the Policy.

[19] After examinations for discovery had been held, 132 served a motion in November 2016 to compel answers to undertakings. Intact provided answers to undertakings, and 132 abandoned its motion. On November 23, 2016, Mr. Shulgan (then-counsel for 132) wrote to counsel for Intact, saying:

Thank you for your letter of November 17, 2016 in which you have provided information necessary to satisfy your client’s undertakings. We confirm that we have abandoned our motion of November 29, 2016.

However, I note that the information provided by Pauline Davidson is only partially produced. There are 24 pages of information. Would you please provide us with a full copy of Intact’s file from which you can redact any information you feel is privileged.

[20] On March 28, 2017, 132 set the action down for trial. Intact did not consent to the action being set down for trial.

[21] On July 17, 2018, Intact formally invoked appraisal under Statutory Condition 11 of the Policy. 132 opposed appraisal on the basis that it allegedly had not received a full copy of the Policy, and that Intact had “attorned to the jurisdiction of the court” to determine the amount of 132’s losses. At around the same time, 132 served a pre-trial certification form to Intact that said that all undertakings had been answered, discoveries were complete, and no further motions would be required.

[22] Due to 132’s refusal to name an appraiser, a motion was heard by King J. on March 13, 2019. He rejected 132’s claim that it had not received a full copy of the Policy. At para. 123 of his decision released on May 21, 2020, King J. ordered that:

The quantum of fire and/or water loss covered under Intact policy number 501266591, claims 5350127 and 5353194, shall be determined pursuant to the statutory appraisal process outlined in the Insurance Act.
The appraisal process shall not commence until the court has made a determination on the issue of the scope of the losses covered by the insurance policy.
Once there has been a legal determination of the scope of the losses covered by the insurance policy by this court, Intact shall notify 132 in writing if it maintains the intention of utilizing the appraisal process within 30 calendar days.
I will remain seized solely for the purpose of resolving any disputes regarding the appointment of an appraiser by 132 and any of the corollary issues arising thereto. I will not otherwise be seized with respect to this matter.

The Motions Now Before the Court

[23] Since the commencement of this litigation, both parties have changed counsel. Mr. Bozzo now has carriage of 132’s claim, and Ms. Santini and Mr. Tam have carriage of Intact’s defence. The amendments now proposed to the statement of claim would increase the total damages claimed to nearly $4 million and add no particularity to the facts pleaded. The amendments would also add new claims for “consequential and punitive” damages for bad faith. The undertakings which 132 seeks to have answered by Intact were the subject of a motion abandoned by 132 nearly 8 years ago, and 132 set the action down for trial over 7 years ago.

[24] The issues for determination are as follows:

i) The plaintiff’s motion

a) With the plaintiff having set the action down for trial in 2017, is leave required for the plaintiff to bring its motion?

b) Should the court grant leave to amend the statement of claim?

c) If leave is not required to bring the motion, should the court order the defendant to answer outstanding undertakings?

d) If leave is required to bring the motion, should it be granted, and should the Court order the defendant to deliver a further and better affidavit of documents?

ii) The defendant’s motion

a) Should the court order the plaintiff to provide further information with respect to an outstanding undertaking?

Plaintiff’s Motion Issue A: With the plaintiff having set the action down for trial in 2017, is leave required for the plaintiff to bring its motion?

[25] 132 set the action down for trial over 7 years ago. Even taking into account the delays occasioned by the COVID-19 pandemic, that is a long time.

[26] Rule 48.04 sets out the consequences of setting down an action for trial:

Consequences of Setting down

48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 343/21, s. 1.

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(0.i) rule 29.1.03 (requirement for discovery plan),

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(ii) rule 30.09 (abandonment of claim of privilege),

(iii) rule 31.07 (failure to answer on discovery),

(iv) rule 31.09 (disclosure of information subsequently obtained),

(v) rule 51.03 (duty to respond to request to admit),

(vi) rule 53.03 (service of report of expert witness); or

(vii) Revoked: O. Reg. 131/04, s. 13.

(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents). R.R.O. 1990, Reg. 194, r. 48.04 (2); O. Reg. 131/04, s. 13; O. Reg. 260/05, s. 10; O. Reg. 438/08, s. 43.

(3) Leave of the court is not required for,

(a) a motion to compel compliance with any obligation imposed by a rule listed in clause (2) (b); or

(b) a motion under rule 6.1.01 for a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages. O. Reg. 175/24, s. 2.

[27] Rule 26.01 is also relevant to this motion, as it is in part a motion to amend the statement of claim:

General Power of Court

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.

[28] I am satisfied that on a plain reading of the Rules leave is not required for a party who has set an action down for trial to bring a motion to compel answers to undertakings given at discovery. However, leave is required to bring a motion for a further and better affidavit of documents and to amend the statement of claim. I agree with and adopt the reasoning of Papageorgiou J. in Shobrook Corporation v. George Goulet, 2023 ONSC 371, [2023] O.J. No. 1095, at paras. 27-36. I also agree that “…(i) leave to bring a motion to amend a pleading under Rule 48.04(1) is shaped by the requirements of Rule 26.01 and (ii) leave to amend a pleading under Rule 26.01 will be refused if it would result in prejudice that cannot be compensated for by costs or an adjournment…”: Horani v. Manulife Financial Corporation, 2023 ONCA 51, [2023] O.J. No. 338, (“Horani”) at para. 22.

[29] I find that leave is not required under r. 48.04 for the plaintiff to bring its motion to compel answers to undertakings, but leave is required under r. 48.04 for the plaintiff to bring a motion for a further and better affidavit of documents and to amend its statement of claim. Given the approach adopted by the parties and endorsed by the court in Horani, I will therefore consider the question of whether leave should be granted to amend the statement of claim and to bring a motion for a further and better affidavit of documents in the next sections of these reasons.

Plaintiff’s Motion Issue B: Should the Court grant leave to amend the statement of claim?

[30] At first glance, the amendments sought appear to be mere increases to the amounts of damages claimed. However, the new amounts claimed at para. 1(b) of the draft amended claim include $3 million as “[d]amages, including consequential and punitive damages, for bad faith…”. The existing claim at para. 1(b) is for “[d]amages for bad faith in the amount of $100,000.00”. The proposed amendments go on to include an increase to the amount claimed under the Policy (from $300,000 to the policy limit of $759,793 in para. 1(c)), as well as increases to the amounts claimed for “repair” from $200,000 to over $2,000,000 (para. 8) and for loss of rental income from $100,000 to $1,000,000 (para. 9). There are no proposed amendments to particularize the claim for “bad faith”, nor to provide any factual foundation for the new claims of “consequential and punitive damages”.

[31] As set out in Horani, the real question on a motion to amend a pleading after setting the action down for trial is whether there is non-compensable prejudice to the other party. Vermette J., who was the motion judge affirmed by the Court of Appeal in Horani (see 2022 ONSC 2350, [2022] O.J. No. 1851), was faced with a motion to amend a statement of claim after the plaintiff had set the action down for trial. In Horani, the plaintiff sought to increase the amount of damages, and to add a claim for punitive, aggravated and/or exemplary damages. Vermette J. ultimately granted leave to increase the amount of damages and denied leave to add a claim for punitive damages. In the course of doing so, Vermette J. reviewed (at para. 47) the general principles that apply to a motion to amend as articulated by the Court of Appeal in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25, as follows:

a. Rule 26.01 requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action.

b. The amendment may be permitted at any stage of the action.

c. There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.

d. The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided.

e. Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.

f. At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed.

g. The onus to prove actual prejudice lies with the responding party.

h. The onus to rebut presumed prejudice lies with the moving party.

[32] I accept the submission of Intact that the additional amounts being claimed represent an entirely new claim that was not reasonably anticipated by Intact. As bluntly put in Intact’s factum, 132 “…wants a new building at Intact’s expense.” Although the draft amended claim still speaks of “repair” to the building on the Property, it is clear on the evidence that the amounts now sought would include both the demolition and reconstruction of that building, as the plaintiff has admittedly known since 2015 that the building could not be repaired. The fundamental nature of the original claim, for indemnity under the terms of the Policy (with a small, unparticularized claim for “bad faith”) would be radically changed by the proposed amendments.

[33] I am persuaded that the proposed amendments would cause both actual and presumed prejudice that cannot be compensated for by costs or an adjournment.

[34] With respect to actual prejudice, this case has been through extensive discoveries and productions and was set down for trial years ago. Since weeks after the initial discovery of the loss claimed, the plaintiff has been represented by competent, experienced counsel. There have been multiple motions, and the stage for the trial was conclusively set by King J. in his reasons released on May 21, 2020. King J. directed that a trial be held to determine the scope of the losses covered under the Policy, but that the quantum of those losses be determined by appraisal under the Insurance Act. That order was not appealed by either party. Justice demands that the parties go forward with the process already determined by King J. over four years ago. All the years of litigation have been essentially focused on the questions of coverage and indemnity under the Policy. I accept Intact’s assertion that the specific litigation decisions made in bringing the motion to compel an appraisal and deciding not to appeal the order of King J. were made in the context of the claim as it now stands, not the proposed claim, which is radically different. That is actual, non-compensable prejudice because Intact “…has lost an opportunity in the litigation that cannot be compensated…”. Indeed, allowing the amendments proposed would so change the nature of the claim that the appraisal ordered by King J. would become moot: this is effectively a collateral attack on the 4-year-old order of King J., which 132 did not appeal.

[35] There is also significant presumed prejudice in this matter. This motion was first returnable on July 25, 2023, which was over 10 years after the events alleged to have caused the losses; 9 years and one day after the action was commenced; over 7 years after the examination for discovery of the defendant’s representative; over 6 years after the action was set down for trial; and over 3 years after King J. ordered that the amount of the losses be determined by appraisal. There is no reasonable explanation for the delay in seeking these amendments; the delay in this case is significantly longer than the delay in Horani, and I have no hesitation in finding that prejudice to Intact is therefore presumed.

[36] I am not satisfied that 132 has met its burden to rebut the presumption of prejudice. The amendments sought are not mere increases to the quantum of damages claimed for causes of action properly pleaded. Rather, they purport to add claims for “compensatory and punitive” damages, without pleading any additional facts to support such claims. The procedural fallout of granting the amendments sought would entail a possible motion to strike the amended claim for want of particularity, responsive amendments to the statement of defence, potential further productions, and further examinations for discovery. I also note that in addition to the trite observation that witness memories fade over time, specific material witnesses to the events have died (in the case of Mr. Vance, the insurance broker), retired (in the case of Mr. Bauer and Ms. Davidson, who were both adjusters who worked on the matter), or disappeared (in the case of two roofers). Moreover, 132 knew about the evidence of Mr. Siino in April of 2013 and did not disclose that evidence until many years later, and his sworn affidavit was not produced until June 2023. His memory is now poor, and Intact had no opportunity to investigate his evidence at the material time. No explanation has been offered for the delays in disclosing Mr. Siino’s evidence.

[37] I have considered as a separate issue whether to grant leave to permit the amendment to paragraph 1(c) of the statement of claim, which would increase the losses claimed “under said Policy of Insurance” from $300,000.00 to $750,793.00, but I find that amendment to be unnecessary because the amount of the losses will be determined via appraisal pursuant to the order of King J., and not assessed as damages by the court.

[38] For these reasons, I refuse to grant leave to amend the statement of claim.

Plaintiff’s Motion Issue C: Should the Court order Intact to answer outstanding undertakings?

[39] This issue may be dealt with briefly. 132 brought a timely motion to compel answers to undertakings on November 2, 2016, just months after the examination for discovery of Intact’s representative. In response to that motion, Intact provided answers to its undertakings on November 17, 2016, and 132 abandoned its motion. It then set the action down for trial in 2017, and in 2019, served a pre-trial certification form upon Intact confirming that the matter was ready for trial, discoveries were complete, and no further motions were required.

[40] 132 did not lead any evidence from its former counsel, Myron Shulgan, K.C., but baldly asserts that he acted inadvertently in failing to pursue any arguably outstanding undertakings. I reject that assertion. On the evidence before me, I am satisfied that Mr. Shulgan acted intentionally and tactically, with binding legal effect on his then-client, 132, in abandoning the motion to compel answers to undertakings, setting the action down for trial, and certifying that the action was ready for trial and no further undertakings or motions were required. I find that Mr. Shulgan turned his mind to the undertakings and determined that the answers he received were sufficient. Notably, he did not seek to schedule further examinations to ask questions arising from the answers given.

[41] In my view, the actions of counsel, which are of course binding upon 132, amounted to “…an unequivocal and conscious intention to abandon the right to rely on the deficiency or default”: Meridian Credit Union Ltd. v. Chijindu, 2019 ONCA 425, [2019] O.J. No. 2664, at para. 3, citing Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490. 132 has waived its ability to compel further answers to the undertakings given in 2016. That portion of the plaintiff’s motion is dismissed.

Plaintiff’s Motion Issue D: Should leave be granted to the plaintiff to move for a further and better affidavit of documents, and should the defendant be ordered to produce same?

[42] As Vermette J. found at para. 26 in the motion decision in Horani, “[t]he requirement to obtain leave applies to the Plaintiffs’ request for an order compelling the Defendant to produce a further and better affidavit of documents”.

[43] I am satisfied that when this motion was first brought, there had been no substantial change in circumstances since the action was set down that would have warranted leave being granted for a motion to compel a further and better affidavit of documents. That said, I note that Intact did produce a further and better affidavit of documents sworn on December 20, 2023, and for that reason, despite there having been no substantial change, it is necessary in the interests of justice to consider the sufficiency of that affidavit. I therefore exercise my discretion to grant leave for this portion of the plaintiff’s motion to proceed.

[44] The affidavit of documents sworn on December 20, 2023 is in my observation both further and better, in particular in the way it lists the specific documents over which privilege is claimed in Schedule “B”, and the nature of the privilege with respect to each document. Mr. Bozzo, on behalf of 132, attempted to argue that there was “prima facie bad faith” on the part of Intact which “pierces” any claim of litigation privilege. The primary difficulty I have with this submission is that the claim of bad faith as pleaded is completely lacking in particularity, and it is the pleadings that define the scope of relevance for any kind of discovery. In my view, there is no properly framed claim of bad faith before the court in this proceeding, let alone prima facie evidence of bad faith.

[45] Mr. Bozzo’s main complaint in argument was that Intact failed to properly investigate the “water damage” claim, and that this amounts to prima facie bad faith. A fundamental problem with this submission is that the water damage claim was not even formally reported to Intact until some four months after the fire damage claim had been reported, and after 132 had retained counsel, Mr. Martini, who had threatened litigation.

[46] I disagree with 132’s submission that prima facie evidence of bad faith pierces litigation privilege. That has been rejected by the Divisional Court in Davies v. American Home Assurance Co., 2002 CanLII 62442 (ON SCDC), 60 O.R. (3d) 512 (Ont. Div. Ct.), at para. 44, which held that:

The point is that litigation privilege (or solicitor- client privilege), when properly asserted, trumps relevance in almost all circumstances. That is its very nature. There is no “bad faith insurance claim” exception to either litigation privilege or solicitor-client privilege that creates a special rule for bad faith claims against insurers and consigns the normal rules respecting privilege to other claims. The same rules apply in all cases.

[47] The question on this motion is simply whether Intact has satisfied its burden to demonstrate that the documents sought by 132 are indeed privileged. The test for determining litigation privilege is whether the “dominant purpose” for which the documents were created was the contemplation of litigation: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 60. The test has been expressed in Smithiyapalan v. Citadel General Assurance Company, [2004] O.J. No. 6245 (ON SC), at para. 3, as having two parts:

a) Was litigation a reasonable prospect at the time the document was produced?

b) If so, was the dominant purpose for the creation of the documents in question to assist in contemplated litigation?

[48] I am satisfied on the evidence that Intact had some reasonable apprehension of litigation by July 2, 2013, when John Tartaro indicated that he was going to retain counsel. That apprehension was crystallized and reinforced by July 18-25, 2023, when 132 retained Mr. Martini and he expressly threatened litigation in correspondence to Intact.

[49] There is no dispute that there was water damage to the Property, but the cause and origin of that water damage has always been in dispute. This is reflected in King J.’s reasons for decision dated May 21, 2020, at paras. 49-50. The cause and origin of the water damage is the most fundamental question in this litigation, as the coverage for the loss under the contract of insurance depends upon it.

[50] I accept the evidence of Mark Noble, a claims examiner employed by Intact who has had carriage of this matter since August 8, 2013, in his affidavit sworn August 31, 2023, that Intact had a reasonable apprehension of litigation by July 2, 2013. I further accept Mr. Noble’s evidence that Mr. Bauer and Mr. Lecce were thereafter retained (in August 2013) for the dominant purpose of investigating the origin and cause of the water damage to the Property. This issue is in fact at the heart of this action, which is the litigation that was contemplated by Intact since July 2, 2013.

[51] The specific documents sought by 132 from Intact are listed in paras. 3(c) and (d) of the Amended Notice of Motion dated February 20, 2024 as follows:

(c) an Order that the Defendant forthwith deliver copies of documents listed in the further and better Affidavit of Documents, including,

i. photographs of the subject property taken by Pauline Davidson on or about April 2, 2013;

ii. the statement of John Tartaro, dated April 4, 2013;

iii. the statements of Sam Rivas, dated April 8 and September 3, 2013;

iv. any communications by which Bruce Bauer was retained by the Defendant for adjusting the claim;

v. the file of Mr. Bauer, including the report of Mr. Bauer, prepared on or about September 4, 2013, in addition to related reports, photographs, and notes;

vi. the report and 1,707 photographs of Lou Lecce, and communications between any of the Defendant Mark Noble, Mr. Bauer and Mr. Lecce, or all of them;

vii. the document Mark Noble received assigning him to the file;

viii. the “Various colour photographs” referenced in the Caskanette Udall Consulting Engineers report, dated June 20, 2016, together with the names of the authors of the photographs, and the dates on which the photographs were taken;

(d) an Order that the Defendant disclose, in the further and better Affidavit of Documents, sufficient particulars with respect to the statements, photographs, reports and notes, listed as item numbers (2), (3), (3B), (4) and (5) in Schedule “B”, including the names of the authors of the “89 colour photographs and notes of subject premises” (referred to in Schedule “B” of the Defendant’s Affidavit of Documents), together with the dates on which those documents were created, in addition to sufficient particulars with respect to the photographs listed as item number (1) in Schedule “C”;

[52] I note that the documents over which privilege has been claimed were not provided to me, and neither party asked me to review them. It is my understanding from the evidence and the submissions made that the “Supplementary Schedule B” attached to the Further and Better Affidavit of Documents largely provides the particulars sought in para. 3(d) of the Amended Notice of Motion. The “89 photographs” have in fact now been produced to 132, although the particulars of who took the photographs and the dates on which they were taken so many years ago are not reasonably available now. 132 was advised in answer to an undertaking in 2016 that no photographs that may have been taken by Pauline Davidson were available. Accordingly, the relief sought at para. 3(d) of the Amended Notice of Motion is dismissed.

[53] With respect to the items sought in para. 3(c) of the Amended Notice of Motion, I find as follows:

i. No photos taken by Pauline Davidson are available, as Intact advised in 2016;

ii. The statement of John Tartaro dated April 4, 2013 is not litigation privileged and shall be produced;

iii. The statement of Sam Rivas dated April 8, 2013 is not litigation privileged and shall be produced, but the statement dated September 3, 2013 is litigation privileged and need not be produced;

iv. The communications by which Bruce Bauer was retained are litigation privileged and need not be produced;

v. The file of Mr. Bauer is litigation privileged and need not be produced;

vi. The report and 1,707 photographs of Lou Lecce, and communications between any of the Defendant Mark Noble, Mr. Bauer and Mr. Lecce, or all of them, are litigation privileged and need not be produced;

vii. The document Mark Noble received assigning him to the file is litigation privileged and need not be produced;

viii. The “Various colour photographs” referenced in the Caskanette Udall Consulting Engineers report, dated June 20, 2016 do not appear to be subject to a claim of privilege, and have in fact been produced in the updated Schedule “A”.

[54] In summary, I order that Intact produce to 132 copies of the statements of John Tartaro and Sam Rivas dated respectively April 4 and 8, 2013. The balance of the plaintiff’s motion is dismissed.

The Defendant’s Motion

[55] Very little time was spent in argument on this motion, which involves a very narrow point. The motion initially sought various answers to undertakings, but by the time the motion was argued only one issue was being pursued by Intact as 132 had provided most of the information sought.

[56] John Tartaro was examined for discovery on August 2, 2016 and gave various undertakings. At Question 67 of the transcript, the following exchange took place:

Q. Do you still have any of the records from when you purchased the property; the Agreement of Purchase and Sale and any of the closing documents?

A. I’m sure.

Mr. Binder: Can I get copies of that, Counsel, please?

Mr. Shulgan: Yes, I’ll look at it and then I’ll let you know whether we’ll produce it or not.

[57] The “Undertakings Chart of the Plaintiff” dated September 11, 2023 indicates that this “undertaking” was “outstanding”. That was not accurate. As set out at para. 18 and Exhibit “G” of the affidavit of Nicole C. Chutko sworn September 11, 2023, the answer was sent to 132’s counsel on January 13, 2017. That answer was to provide the lawyer’s reporting letter from the purchase, and twelve of the twenty enclosures listed in that letter.

[58] For over six years, Intact made no request to obtain further information from 132 about the 2010 purchase of the Property, but in response to the motion, Mr. Bozzo provided such additional documents as were in his client’s possession. The only remaining items sought by Intact are copies of a title insurance policy and various documents related to two tenants who were in the Property in 2010 (listed as items 19 A-F in the Chutko Affidavit).

[59] I find on the evidence that no undertaking was ever given to produce all of the documents attached to the lawyer’s reporting letter; that 132 has produced all of the documents in its possession pertaining to its 2010 purchase of the Property; and that even if the remaining items 19 A-F were in 132’s possession, those documents are utterly irrelevant to this proceeding.

[60] For these reasons, the defendant’s motion is dismissed.

Conclusion

[61] On the plaintiff’s motion, I order that Intact produce to 132 copies of the statements of John Tartaro and Sam Rivas dated respectively April 4 and 8, 2013. The balance of the plaintiff’s motion is dismissed.

[62] The defendant’s motion is dismissed.

[63] The plaintiff began its factum by stating that “This case needs a healthy dose of clarity.” I do not imagine that this result is the particular type of clarity that the plaintiff was seeking, but I could not agree more with the general sentiment. I urge the parties and their lawyers to put this case back on the track for the limited-issue trial that was ordered by King J. over 4 years ago.

[64] With respect to costs, my presumptive view is that no costs should be awarded to either party for the defendant’s motion, and the defendant should be entitled to its costs with respect to the plaintiff’s motion. I expect that experienced counsel will be able to assist their clients in reaching an agreement upon costs. If they are unable to do so, the parties may make submissions with respect to the scale and quantum of costs in writing of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a) Intact shall deliver its submissions within thirty (30) days following the release of these reasons;

b) 132 shall deliver its submissions within twenty (20) days following service of Intact’s submissions;

c) Intact shall deliver its reply submissions, if any, which shall be limited to no more than two (2) pages, within five (5) days following service of 132’s submissions.

[65] If either party fails to deliver its submissions in accordance with this schedule, that party shall be deemed to have waived its rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

J. Ross Macfarlane

Justice

Released: August 30, 2024

COURT FILE NO.: CV-14-21058

DATE: 20240830

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

1329677 Ontario Ltd.

Intact Insurance Company

REASONS FOR DECISION

Macfarlane J.

Released: August 30, 2024

1329677 Ontario Ltd. v. Intact Insurance Company, 2024 ONSC 4821

Case Summary

REASONS FOR DECISION

J.R. MACFARLANE J.

Introduction

Factual Background and Litigation History

The Motions Now Before the Court

Plaintiff’s Motion Issue A: With the plaintiff having set the action down for trial in 2017, is leave required for the plaintiff to bring its motion?

Plaintiff’s Motion Issue B: Should the Court grant leave to amend the statement of claim?

Plaintiff’s Motion Issue C: Should the Court order Intact to answer outstanding undertakings?

Plaintiff’s Motion Issue D: Should leave be granted to the plaintiff to move for a further and better affidavit of documents, and should the defendant be ordered to produce same?

The Defendant’s Motion

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 2