TORONTO COURT FILE NO.: CV-20-00637802 DATE: 20240926 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TVM COBOURG INC. and TVM CONSTRUCTION MANAGEMENT INC. Plaintiffs – and – PETER C. HILLAR and GREYFIELD CONSTRUCTION CO. LTD. Defendants

Counsel: Jamie Spotswood and Camille Beaudoin, for the Plaintiffs Christopher James Sparling, for the Defendants

HEARD: June 21, 2024 by Videoconference in Newmarket with Cobourg Court File No. CV-20-34

REASONS FOR DECISION

DE SA J.:

A. Overview of the Action

1The Plaintiffs, TVM Cobourg Inc. (“TVM Cobourg”) and TVM Construction Management Inc. (“TVM Construction”) (collectively, “TVM”), bring this motion for an Order compelling the Defendants, Peter C. Hillar and Greyfield Construction Co. Ltd. (“Greyfield”), to answer outstanding undertakings and refusals.

2On March 10, 2020, the Plaintiffs, commenced this Action (the “TVM Action”) against the Defendants for damages arising out of fraudulent and negligent misrepresentation, breach of contract, and defamation in relation to the development of a residential condominium at 135 Orr Street in Cobourg, Ontario (the “Premises”) called the Harbour Breeze Condominium (the “Project”). TVM Cobourg was the owner of the Premises and TVM Construction was the general contractor for the Project. Greyfield was a subcontractor on the Project and Mr. Hillar is the principal of Greyfield.

3The Defendants defended the TVM Action and brought a Counterclaim against the Plaintiffs for amounts alleged to be owing pursuant to the CCA1 – 2008 Stipulated Price Subcontract between TVM Construction and Greyfield. The allegations contained in the Counterclaim are already the subject of an action by Greyfield against the Plaintiffs in the Superior Court of Justice in Cobourg, ON, bearing Court File No. CV-20-00000034-0000 (the “Lien Action”).

B. The First Lien Pre-Trial

4On March 6, 2023, the parties appeared before The Honourable Justice McCarthy for the first-lien pre-trial conference. Further to the Endorsement of Justice McCarthy, the parties brought a consent motion to have the Lien Action and TVM Action heard together or one after the other. Justice McCarthy also ordered that the parties attend further examinations for discovery.

C. Undertakings, Questions Taken Under Advisement and Refusals

5At the examination for discovery of Mr. Hillar on September 22, 2023 (the “Hillar Examination”), 3 undertakings were given, 6 questions were taken under advisement and 28 questions were refused.

6To date, 26 questions have been refused (the “Refusals”) primarily on the basis of relevance.

7The single issue to be addressed on this motion is whether the Refusals are improper.

Analysis

8Pursuant to Rule 31.06(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”), the scope of examination for discovery is confined to “proper” questions “relevant” to matters in issue in the action. Implicit in the Rules of Civil Procedure is that a party may refuse to answer any question which is not relevant or that is protected by privilege.

9Relevance is defined by the pleadings. However, “broad unsubstantiated allegations in pleadings cannot be used by parties to embark on a fishing expedition” ³⁴.

10Even if a question is relevant, the Court must consider the principles of proportionality before making any determination with respect to discovery ⁵.

11In this case, TVM has helpfully divided the Refusals into three categories of relevance:

(i) Greyfield’s damages and non-payment to subcontractors (ii) Parallel proceedings (iii) Obligations pursuant to the Rules of Civil Procedure

12The outstanding refusals/under advisements have been set out in the below chart. I will address each of them below. Some refusals appear in 2 categories of relevance because the issues overlap:

i.	Greyfield’s Damages and Non-Payment	UA No.: 6 Ref. No.: 1, 10, 23-24
ii.	Parallel Proceedings	UA No.: 1 and 2 Ref. No.: 6-13, 15, 17-24, and 27-28
iii.	Rules of Civil Procedure	Ref. No.: 4, 14, 25-26

i. Greyfield’s Damages and Non-Payment of Invoices

13The Refusals in the first category relate to non-payment of invoices of subcontractors and are set out below:

• UA No. 6 – To verify that Greyfield had retained earnings of $1,152,000 related to the Harbour Breeze project.
• Ref. No 1 – To disclose Greyfield’s active projects.
• Ref. No 10 – To confirm whether Greyfield communicated to principals of Doka or its representatives that Doka will be paid when TVM pays Greyfield.
• Ref. 23 – To confirm if there are other lawsuits against Greyfield relating in any way to the Harbour Breeze project that have not been discussed in the proceeding to date.
• Ref. 24 – To confirm if there have been any other demands for payment against Greyfield by a supplier or subcontractor relating to the Harbour Breeze project that have not already been disclosed in the lawsuit to date.

14With respect to category 1, Ref. No. 10, 23, and 24 are to be answered by Greyfield.

ii. Parallel and Related Proceedings

15The refused questions in the second category relate to actions commenced by Greyfield’s subcontractors. According to TVM, information regarding the subcontractor actions is relevant because Greyfield incorporated, directly into its Reply, information regarding the subcontractor actions.

16At paragraph 16 of the Reply, Greyfield confirms that three of its subcontractors “issued perfected construction claims against Greyfield … in the total amount of $257,479.68.” At paragraph 20 of the Reply, Greyfield includes a list of the claims by the subcontractors.

17The questions taken under advisements and refusals in this category are set out below.

UA No.: 1 and 2 Ref. No.: 6-13, 15, 17-24, and 27-28

• UA No. 1– To confirm whether the claim at para. 9 of the Doka Statement of Claim – “These invoices were paid by Greyfield on a regular basis until May 31, 2019 when Doka received the last payment tendered by Greyfield to date” is accurate.
• UA No. 2 – To produce the requests for payment referenced at paragraph 10 of the Doka Statement of Claim to the extent they’re in writing and the solicitor’s demand letter.
• Ref. No. 6 – To produce the statement of defence and other pleadings in the Doka Action.
• Ref. No. 7 – To confirm whether the Doka Action has been resolved or is ongoing.
• Ref. No. 8 – To confirm whether production has been exchanged in the Doka Action.
• Ref. No. 9 - To confirm whether examinations for discovery occurred in the Doka Action.
• Ref. No. 10 – To confirm whether Greyfield communicated to principals of Doka or its representatives that Doka will be paid when TVM pays Greyfield.
• Ref. No. 11 – To confirm that the dispute that is the subject of the Doka Action relates to the materials and services Doka provided on the Harbour Breeze project that brings us here today.
• Ref. No. 12 – To confirm that the subject matter at least in part of the Doka lawsuit relates to the Harbour Breeze project in Cobourg that the TVM and Greyfield actions also relate to.
• Ref. No. 13 – Same as UA 1 above.
• Ref. No. 15 – To confirm whether the last payment to Doka is as alleged in the Doka pleading, being in May 2019.
• Ref. No. 17 – To confirm if the Coreslab Action has been resolved or is ongoing.
• Ref. No. 18 – To confirm if pleadings have been closed in the Coreslab Action.
• Ref. No. 19 – To confirm if productions have been exchanged in whole or in part in the Coreslab Action.
• Ref. No. 20 – To confirm if Examinations for Discovery occurred in the Coreslab Action.
• Ref. No. 21- To confirm if Mr. Hillar or anyone on behalf of Greyfield told a principal of Coreslab or a representative of Coreslab that Coreslab will be paid in the amount it seeks from Greyfield when TVM pays Greyfield.
• Ref. No. 22 – To confirm if paragraph 14 of the Coreslab Statement of Claim is accurate (The Plaintiff sent invoices totaling $971,484.73 to the Defendant, the defendant made payments totaling $738,669.90.)
• Ref. No. 23 – To confirm if there are other lawsuits against Greyfield relating in any way to the Harbour Breeze project that have not been discussed in the proceeding to date.
• Ref. No. 24 - To confirm if there have been any other demands for payment against Greyfield by a supplier or subcontractor relating to Harbour Breeze project that have not already been disclosed in the lawsuit to date.
• Ref. No. 27 – To confirm whether the reference to construction claims at para. 19 of the Haggart Statement of Claim relates only to lien claims (the Claims by B.W. Haggart and Lafarge duplicate the claims made in the construction proceedings. Therefore the maximum additional liability of TVM pursuant to the construction proceedings and L and M bond claims is $519,163 and then there’s a table that follows that lists construction claims and L and M bond claims).
• Ref. No. 28 – To inform what the balance owing is to any other entities that have made a civil claim, bond claims or any other kind of demand that aren’t listed on the table [Ref. Statement of Claim, para. 20]

18In addition to Ref. 10, 23, and 24 above, Greyfield is to answer 6, 12, 21, 22, 27, 28.

iii. Rules of Civil Procedure

19The final category of refusals are questions that relate to TVM’s reasonable entitlement to information pursuant to the Rules of Civil Procedure.

Ref. No.: 4, 14, 25-26

• Ref. No. 4 – To produce a consolidated sworn Affidavit of Documents that includes the drawings and all the other documents that Greyfield has produced in various production sets since this litigation began within 60 days.
• Ref. No. 14 – To produce the documents and notes Mr. Hillar is looking at and taking in the midst of Examination of Discovery.
• Ref. No. 25 – To review the pleadings of the Greyfield Action and inform if there are any amendments that are required as of this date or following the discovery.
• Ref. No. 26 – To review the pleadings of the Greyfield Action and inform within 60 days whether any changes are required.

20With respect to the above, Greyfield is to produce a consolidated and sworn Affidavit of Documents within 90 days of this Order. (4)

21Greyfield is also to provide clarification as to the remaining amount Greyfield alleges is owed by TVM. (26)

22TVM is to provide its submissions on costs within 3 weeks of the release of this decision. Greyfield has 2 weeks thereafter to respond.

Footnotes

1. 3Ontario v Rothmans Inc., 2011 ONSC 2504, at para. 129.
2. 4Jardine Lloyd Thompson Canada Inc. v. Terence Patterson, 2018 ONSC 444, at para. 5; Rothmans, at para. 129.
3. 5Rules of Civil Procedure, RRO 1990, Reg 194, at Rule 29.2.03; Rothmans, at para. 129.
4. 1Rules of Civil Procedure, RRO 1990, Reg 194, at R 31.06.
5. 2Rules of Civil Procedure, RRO 1990, Reg 194, at Rule 31.07(1).