Court File and Parties

COURT FILE NO.: 4208/19 (Milton) DATE: 2024 11 27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE ESTATE OF SHAUN MULDOON by his litigation administrator, NICOLE MULDOON and CYNTHIA MULDOON, Plaintiffs - and - THE CORPORATION OF THE TOWN OF OAKVILLE, Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: P. Callahan, for the plaintiffs (moving parties) S. Hamilton, for the defendant

HEARD: November 13, 2024

REASONS FOR DECISION (Motion to Strike or for Further Affidavit of Documents)

[1] The plaintiffs move for an order striking the statement of defence of The Corporation of the Town of Oakville (the “Town”) or for an order compelling a further and better affidavit of documents. However, only a further and better affidavit of documents was pursued at the motion hearing.

[2] This action arises out of a construction dispute regarding a custom-built house in Oakville, which was constructed by the third party, Aaron Breier, and purchased by Shaun and Cynthia Muldoon. After this action had been commenced, Mr. Muldoon passed away. His daughter, Nicole Muldoon, has since been appointed litigation administrator of the estate.

[3] The parties exchanged productions in 2021. As I understand it, the plaintiffs were discovered over a year ago. The Town’s representative was produced for examination on January 9, 2024, immediately prior to which a sworn version of the Town’s previously unsworn affidavit of documents was provided to the plaintiff. The plaintiffs’ lawyer ultimately terminated the examination based on inadequate production by the Town and thereafter brought this motion. Continued examination of the Town is currently scheduled for December 5, 2024.

[4] I am granting the motion, but only in part. The Town’s affidavit of documents is evidently deficient. However, the scope of documents sought by the plaintiffs is overreaching. They have not met their onus of demonstrating relevance and existence for many of the categories of documents requested. I agree with the Town that the plaintiffs are, in many cases, seeking answers to discovery questions in advance of examining the Town’s representative. Those productions requests are dismissed, but without prejudice to the plaintiffs examining on their existence and making more specific requests for production arising from those questions during the pending continued examination of the Town.

Analysis

Threshold Objections

[5] The Town raises two threshold objections to this motion proceeding: (i) the plaintiffs have failed to comply with Chozik J.’s order that all outstanding costs orders be paid before this hearing; and (ii) the plaintiffs should be denied relief pursuant to rule 29.1.05 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) for failing to agree to a discovery plan.

[6] With respect to the first objection, at the last return of this motion, the plaintiffs remained in breach of three prior orders to pay costs totalling $3,650. Chozik J. directed that the plaintiffs pay the outstanding costs by no later than 4:30 pm on October 25, 2024 or the plaintiffs’ motion may be struck. I agree with the Town that the costs remain unpaid, but am satisfied that sufficient efforts to comply were made to avoid this motion being struck. A cheque for $3,230.09 from the plaintiffs’ lawyer payable to the “Town of Oakville” was sent. The cheque was dated October 25, 2024, but was mailed and not received by the Town’s lawyer until October 30, 2024. It has not been cashed on the basis that the payee is incorrect.

[7] I agree with the Town that the payee of the cheque ought to be the Town’s proper corporate name (i.e., the named defendant) and that the amount is incorrect. The plaintiffs submit that they are both clerical errors. The payment was also made late, since the order was to have paid the costs, not cut a cheque on the deadline date. It does not appear that the plaintiffs (or their lawyer) heeded the seriousness of Chozik J.’s warning. Nevertheless, they did attempt to comply. I accept that there were clerical errors and that the difference in amount is modest. In my view, the default is not sufficient to bar this motion from proceeding. It does remain relevant to costs.

[8] To be clear, nothing in the foregoing relieves the plaintiffs from complying with the outstanding costs orders and paying the required costs. If not already done since the motion hearing before me, counsel for the parties should be coordinating on replacing the erroneous cheque.

[9] With respect to the second objection, no discovery plan was agreed between the parties as required by rule 29.1.03 of the Rules. In fact, the record before me supports that the plaintiffs stated that they would provide a proposed discovery plan, but never did. The only discovery plan ever proposed was prepared by a third party, Aaron Breier, which was rejected by the plaintiffs. A case conference to timetable the action was then sought in November 2022.

[10] In my view, the parties’ dispute over many of the plaintiffs’ production requests could have been avoided – or at least brought to a head prior to documentary discovery – by proper discovery planning. Many of the documents now sought, including document custodians, could and should have been discussed while defining the scope of relevant productions sought from each party. In my view, that is a key purpose behind rule 29.1.

[11] Pursuant to subrule 29.1.05(1), on any motion under rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan. I reject the Town’s submission that I should deny the plaintiffs’ motion on that basis. The obligation under rule 29.1 for a discovery plan applies to all parties: both the plaintiffs and the Town. The plaintiffs did not propose a discovery plan, but neither did the Town. Both parties breached their obligation under rule 29.1.03. I am not prepared to penalize the plaintiffs for a default shared by the Town.

[12] Having rejected both of the Town’s threshold objections to this motion, I turn to its substantive merits.

Further and Better Affidavit of Documents

[13] Subrule 30.02(1) of the Rules requires parties to disclose “every document relevant to any matter in issue in the action that is or has been in the possession, control or power of a party to the action.” Subrule 30.03(2) requires that a party’s affidavit of documents describe all documents relevant to any matter in issue that are or were in the party’s possession, control or power. The prescribed forms (Form 30A and 30B) correlate the three categories of documents discussed in subrule 30.03(2)(a)-(c) to Schedule A, B, and C, as follows:

(a) Schedule A: relevant documents that are in the party’s possession, control or power and that the party does not object to producing; (b) Schedule B: relevant documents that are or were in the party’s possession, control or power and for which the party claims privilege; and (c) Schedule C: relevant documents that were formerly, but are no longer, in the party’s possession, control or power, whether or not privilege is claimed for them.

[14] A party’s production obligation is ongoing. Rule 30.07 expressly provides that where a party, after serving an affidavit of documents, (a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged, or (b) discovers that the affidavit is inaccurate or incomplete, the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.

[15] The ambit of production is determined by reference to the pleadings. All documents relevant to an issue raised in a pleading must be disclosed and produced, subject to proportionality concerns. Production rules are intended to ensure that parties make full disclosure of all relevant documents and production of all relevant non-privileged documents well in advance of the examinations for discovery or, in the case of newly discovered documents, “forthwith” after their discovery. Parties are expected to comply with their document disclosure and production obligations without the need for court intervention: Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 at paras. 42-43.

[16] Subrule 30.06(b) provides that a further and better affidavit of documents may be ordered 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.

[17] In Maalouf v. Bayer Inc., 2023 ONSC 4875, I summarized the applicable legal principles on a motion for a further and better affidavit of documents under the Rules. Although that decision was not specifically cited by either party, the principles are the same as those identified in the cases put before me. As I noted in Maalouf, at para. 17, case law supports that four primary considerations are assessed on a motion for a further and better affidavit of documents, as follows:

(a) Parties are generally left to make the initial decision about what documents to produce themselves; (b) When missing documents are alleged, the moving party must prove that the documents exist on a balance of probabilities before an order is made that they be disclosed in a further and better affidavit of documents; (c) There must be evidence that specific documents exist that have not been produced. Evidence that amounts to intuition, speculation and guesswork is insufficient. However, the level of proof required must take into account that one party has access to the documents and the moving party does not; and (d) Simply identifying the existence of documents is not enough. The missing documents must also meet the test of relevance under the Rules and must also satisfy the proportionality requirements of rule 29.2.03.

[18] Importantly, rule 30.06 is not a tool for “fishing expeditions” nor does it permit production of documents relevant only to the issue of credibility: SecurityInChina International Corp. v. Bank of Montreal, 2019 ONSC 7183 at para. 8.

[19] The foregoing are the considerations that I have applied in deciding this motion.

[20] The Town’s unsworn affidavit of documents was initially served in January 2021. It consists of 88 documents disclosed in Schedule A, with no documents disclosed in Schedule B or C. Although the plaintiffs point out that a sworn copy was not served until January 2024, it is undisputed that the sworn version is the same as the unsworn one. There is no evidence before me that, in the three years between 2021 and 2024, the plaintiffs raised any concerns with the scope or completeness of the Town’s production. Notably, none of the documents sought on this motion were requested by the plaintiffs before commencing the Town’s examination or even before this motion was brought. The plaintiffs were seemingly content to proceed with examining the Town based on the existing productions, at least until the examination was underway.

[21] This motion was argued based on a chart prepared by the parties as directed by Chozik J., which was structured akin to a refusals and undertakings chart. The plaintiffs seek further production arising from 40 documents disclosed in its existing affidavit of documents. In total, there are 66 production requests reflected in the chart (some overlapping). Several were withdrawn prior to or during argument before me, some based on the responses provided by the Town to this motion. The Town has also voluntarily produced a number of the requested documents. The balance of the plaintiffs’ requests are disputed. The Town has generally conceded relevance of the documents (if proven likely to exist), subject to those documents where relevance is specifically challenged in the Town’s responding chart.

[22] Although I have regrouped the production requests, the numbering referenced below matches the production tab references in the chart used at the hearing.

[23] “Proper forms” (Tab 1): The plaintiffs seek production of the “proper forms” referenced in an email dated April 22, 2016 from Aaron Brier to the Town’s inspector, Kelly Stephens. Specifically, Mr. Brier states that “proper forms” were submitted and accepted by someone named Michelle Durmanic. There is insufficient evidence to support a production order. No evidence has been tendered about what the “proper forms” being referenced may be, whether they were (as stated by Mr. Brier) submitted to the Town, and whether they likely exist and are within the possession, control, or power of the Town. In my view, inquiries about the “proper forms” are more properly made during examination for discovery.

[24] Town representative files, notes, and records (Tabs 1-3, 5-6, 8, 13-15, and 40-42): The plaintiffs make various requests for “a complete copy” of the files and “any and all notes” made by various Town representatives arising from matters identified in particular emails and documents: Kelly Stephens, Michelle Drmanic, Peter Kozeli, John Tutert, Eric Lehtinen, Vince Blosser, Rebecca Medaric, Jennifer Maveal, Paul McCann, Kevin Wood, “WPM”, and “DONP”. Most or all of the individuals appear to have been inspectors involved in the construction. The Town’s position is that the requests are too vague and too broad. Also, for most of the requests, the individuals are said to have no files of their own. In the case of John Tutert and Eric Lehtinen, they are also said to now be retired.

[25] The Town has tendered no evidence supporting its factual assertions about whether the inspectors did or did not maintain their own files. There is also no evidence on retirements nor any convincing argument on why that is relevant to a production request. The only inspection record to which I have been directed in the Town’s productions is found at Tab 42, which is a spreadsheet of inspections, dates, and notes. No individual notes or reports prepared by the various inspectors involved during the home construction have been produced.

[26] I agree with the plaintiffs that it would be unlikely that none of the Town’s inspectors took notes during inspections. However, I find no reasonable or fair basis to take judicial notice that municipal inspectors do take and maintain notes from inspections. The position that there “must be” notes is not based on any evidence, such as inspection notes and records that are available in other parties’ productions from the related proceedings. It is based entirely on speculation, guesswork, and intuition, which the case law clearly states are insufficient to support a production order.

[27] For example, the fact that various emails produced by the Town refer to actions taken by or meetings and discussions with Town inspectors does not itself mean that there are notes and records from those interactions. Similarly, the fact that a Town representative was copied on an email is not evidence that there are undisclosed notes from that individual.

[28] There is insufficient evidence before me to find, on a balance of probabilities, that inspection records beyond the one produced at Tab 42 do exist. I accordingly find no basis to make a production order.

[29] I am also concerned that I have been directed to no evidence confirming how the various individuals from whom production is sought were involved during construction. I am not convinced that every inspection that did or ought to have occurred during construction is relevant based on the pleadings. “WPM” and “DONP” are not even identified. I am unable to find that each individual is a relevant document custodian. These are examination inquiries.

[30] Documents relating to 1360 Acton Crescent (Tabs 7-8): The plaintiffs seek production of “any and all documentation relating to 1360 Acton Crescent”, including notes and text messages of David Silva and Kelly Stephens. The request is based on references in two emails produced by the Town. The Town argues that 1360 Acton Crescent is the neighbouring property and is irrelevant to construction of the house on the property in dispute, which is 1368 Acton Crescent. Both properties were under construction at the same time. The plaintiffs do not dispute that the neighbouring property is irrelevant, but argue that the emails are referring to 1368 Acton Crescent and must contain typographical errors for the property address.

[31] If the two emails deal with the neighbouring property and that property is irrelevant, then it is unclear why the Town produced the emails. Regardless, I have been directed to nothing in the pleadings supporting that construction at the neighbouring property is relevant. Quite apart from the fact that the plaintiffs’ document requests, as framed, are overbroad, there is no evidence supporting a finding of unproduced, relevant documents arising from either of these productions. Whether or not these emails do, in fact, refer to 1368 Acton Crescent and whether the documents sought by the plaintiffs do exist is more properly explored during examination of the Town’s representative.

[32] Notes made by “Kevin” and correspondence with “Brad Sylvester” (Tab 7): There is no evidence before me supporting the identities of “Kevin” or “Brad Sylvester” and that either of them has relevant knowledge or involvement. The plaintiffs assume that “Kevin” refers to Kevin Wood, who is purportedly another Town representative. Relevance of notes made by “Kevin” and notes made by Kelly Stephens or correspondence between her and Brad Sylvester has not been established, nor has existence of such documents.

[33] Specific email correspondence (Tabs 11-14): The plaintiffs seek production of various email correspondence between individuals that they argue are referenced in the affidavit of documents. The Town’s position is that these were provided on January 11, 2021, April 7, 2021, October 1, 2024 and November 5, 2024.

[34] In responding submissions, the Town sought to rely on an affidavit that was prepared, sworn, and served over the lunch break after the plaintiffs’ moving submissions were completed. The Town submitted that the affidavit was prepared to address the plaintiffs’ submission that they had not received correspondence referenced in the chart. Leave to tender further evidence was not sought prior to the break or even upon return from it. The plaintiffs did not consent to the affidavit. In such circumstances, preparing new evidence after commencement of oral argument was improper. I have not considered that affidavit in deciding this motion.

[35] Ultimately, the issue is moot. The only version of the affidavit of documents in evidence before me is the unsworn version found at Exhibit F to the plaintiffs’ supporting affidavit. That version does not include any emails at Tab 11 (only photographs) and does not include Tabs 12-14 at all. The record supports that the Town’s lawyers sent links to the affidavit of documents and Schedule A productions, but the content of those links is not before me. To the extent that the complete Schedule A productions for Tabs 11-14 have not been produced, they must be.

[36] Application for hearing (Tab 16): The plaintiffs point out that the produced email does not include the “Application for Hearing” attachment referenced in the email. The Town’s position is not that the application is irrelevant, but rather that it has already been produced by the plaintiffs as an attachment to another email. That is beside the point. Since the Town views the email exchange as relevant, a complete copy of the noted email on September 10, 2019 at 5:41 PM, with attachment(s), should have been produced.

[37] Demolition inspection (Tabs 25 and 28): The plaintiffs seek production of notes and documentation relating to an inspection before the demolition and revised demolition permits were issued on the basis that “there must have been” an inspection. I agree with the Town that there is no evidence supporting that any such inspection took place.

[38] The plaintiffs argue that the demolition permit itself refers to inspections, which it does, but the notes about inspections appear to be regarding inspections that will occur under the permit. In my view, the general statements about inspections are an insufficient foundation for a production order. What is meant by the statements is more properly the subject matter of an examination of the Town’s representative.

[39] Building permit application documents (Tab 26): The plaintiffs request (i) the building permit arising from a produced application for a building permit, and (ii) the documents that were attached to the application. The Town has now produced the building permit. The Town further concedes that Schedule C to its affidavit of documents must be updated to reflect purged records, which the Town acknowledges are implicated by the production request. The documents attached to the application must accordingly be disclosed in Schedule A (if available) or Schedule C (if no longer available).

[40] Excavation permit and pre-permit inspection (Tab 29): The plaintiffs seek production of (i) an application for excavation permit, (ii) the copy of an excavation permit issued March 29, 2016, (iii) all notes and documents relating to any inspection occurring before approval of the building permit, and (iv) the application for building permit. In each case, the plaintiffs argue that the documents must exist, but they have tendered no evidence in support of that bald assertion.

[41] The Town’s position is that the application for building permit is found at Tab 26 of the Town’s affidavit of documents. That document is indeed an application for a permit. Further inquiries about the document are properly the subject matter of the upcoming examination.

[42] With respect to the remaining requests, the Town’s position is that there is no document in its records named “Excavation Permit” and that there is no evidence that any alleged inspections took place. I agree there is no evidence before me supporting the plaintiffs’ assertions that there “must have been” an excavation permit. I have been directed to nothing supporting that a permit was issued on March 29, 2016 that has not been produced or that pre-permit inspections occurred. There is insufficient evidence before me to support a production order.

[43] Documents relating to stop work order (Tabs 30 and 34): The plaintiffs seek a “complete file” from John Tutert relating to the produced stop work orders and, in each case, “all notes he may have made prior to issuance of the Stop Work Order”. The plaintiffs also seek any notes of any other individual who may have issued the stop work order at Tab 30.

[44] I find no basis to make a production order. The plaintiffs’ request is based entirely on speculation that “some form of investigation must have been conducted” before the stop work orders were issued and that documents therefore should exist relating to that investigation. That is insufficient to support a production order. There is no evidence before me supporting that John Tutert maintained any notes or records regarding the stop work orders. I also agree with the Town that there is no evidence that anyone other than Mr. Tutert, who is named in the stop work orders, issued the order or was involved in issuing it. The Town’s representative may be examined on the plaintiffs’ speculation.

[45] Documents relating to Order to Remedy (Tab 31): The plaintiffs seek production of “the compete file” and notes made by Kelly Stephens prior to issuance of the produced Order to Remedy. As with Tabs 30 and 34 above, the plaintiffs’ request is based on speculation that “some form of investigation must have been conducted”. There is no evidence of that and, accordingly, no basis for a production order. The Town’s representative may be examined on the plaintiffs’ speculation.

[46] Documents regarding building permit application (Tab 32): The plaintiffs seek the related building permit to the produced permit application and “the complete file” related to issuance of the building permit, including attachments to the application for building permit. There is no evidence of a “complete file”. The Town has pointed to Tab 33 for the related building permit. The Town also acknowledges that documents implicated by the request ought to have been listed in Schedule C, since certain records were purged. The documents attached to the application must accordingly be disclosed in Schedule A (if available) or Schedule C (if no longer available).

[47] Documents relating to building permits (Tabs 33 and 36): The plaintiffs seek “the complete file” related to issuance of these two produced building permits, including notes regarding any inspection conducted prior to approving the permit. In both cases, the plaintiffs submit that there “must have been an inspection of the subject property by Town officials prior to approving this Building Permit”. There is no evidence on what inspections took place, other than the list of inspections found at Tab 42. The plaintiffs’ production requests are based entirely on speculation. The Town’s representative may be examined on whether there are any other inspection records.

[48] Attachments to application (Tab 35): The plaintiffs seek “any and all supplemental documentation that may have been submitted” in respect of the permit application. Specifically, the plaintiffs point to a reference to required schedules, which are not included. The Town’s position is that nothing is indicated as being attached. I agree. The section referred to by the plaintiffs deals with required schedules in particular circumstances. There is no evidence before me that either applied in the circumstances of the application. A production order is not warranted. The Town’s representative may be examined on whether the schedules were required and, if so, whether they were submitted.

[49] Documents over which privilege is claimed (Tabs 17, 20, 37, 38, and 80): The plaintiffs request the following documents:

(a) the compete file relating to the appeal to the Building Code Commission (“BCC”) referenced in the document at Tab 17; (b) any and all notes made by Dennis Perlin (who is the Assistant Town Solicitor), or other documentation or correspondence relating to the BCC appeal, or to settlement discussions relating to the BCC appeal referenced in the document at Tab 17; (c) the complete file relating to the Town’s prosecution of Aaron Breier in connection with the order to comply discussed in the document at Tab 20; (d) any and all notes made by a Town official (other than David Silva) made after the visit to 1368 Acton Crescent and the concurrent meeting with Shaun Muldoon which led to the Muldoons being subsequently added to the order to comply (versions produced at Tabs 37 and 38); and (e) the complete contents of the file relating to the prosecution of the order to comply, which is the subject application for hearing to the BCC produced at Tab 80.

[50] I agree with the Town that the requests, as framed, are overbroad. However, the Town has conceded that there are at least some relevant documents, but that such documents are solicitor/client privileged (since they involve legal advice sought and received from its in-house lawyers) or are otherwise litigation privileged. However, Schedule B to the Town’s sworn affidavit of documents indicates there are no relevant documents over which privilege is claimed, stating unequivocally, “None.” The Town concedes that statement is inaccurate and that there are relevant, privileged documents that are not listed.

[51] I need not address the privilege case law before me and arguments made on it. There is no evidence before me on which to assess the scope and number of documents over which the Town claims privilege or addressing how and when the documents came into existence. Both are required to consider and decide a privilege claim.

[52] I am satisfied that an order should be made given the Town’s concession that there are relevant and privileged documents that ought to have been particularized in Schedule B to its affidavit of documents. Whether all documents captured by the plaintiffs’ requests are relevant is less clear, but I am satisfied that the Town reasonably and likely has undisclosed documents relevant to the appeal, orders to comply, and prosecution. A further and better affidavit of documents is evidently required.

[53] I agree with the plaintiffs that the Town has not put forward an evidentiary basis to support its privilege claims, but I am not prepared to dismiss the Town’s privilege claims and make a blanket production order. Privilege is important. Ordering production of documents over which the Town asserts privilege on the bare record put before me by the plaintiffs would unfairly deny the Town an opportunity to comply with rule 30.03(2) of the Rules and more clearly set out what relevant portions of the files are privileged, including on what basis, and what portions are not privileged and will be voluntarily produced. The privilege claims may then be explored by the plaintiffs during examination for discovery of the Town’s representative.

[54] Although, on the record before me, I have found no basis to make a production order for many items, I share the plaintiffs’ disbelief that no such documents exist, that the documents are not relevant, and that they are not in the possession, control, or power of the Town. In declining to grant production relief, I am simply not satisfied that there is sufficient evidence before me that they do exist, on a balance of probabilities, and have not been produced by the Town. The plaintiffs have not met their onus on this motion. Despite my doubts that the Town has indeed meaningfully complied with its production obligations, I am not prepared to order a party to do something that might not be possible to do based solely on intuition and speculation.

[55] That said, it will remain open to the plaintiffs to cross-examine the Town on its affidavit of documents as part of the examination for discovery and probe whether there remain relevant and unproduced documents, including inspection notes and records from individual inspectors and other Town representatives. If such unproduced documents do exist, then that may lead to additional examination and costs consequences for the Town. Such concerns may be raised with Chang J. at the case conference scheduled in early 2025.

Timing of Further Production

[56] For various reasons, it has not been possible for me to release my decision on this motion sooner. The Town is scheduled for a continued examination for discovery in just over a week on December 5, 2024, which itself was only three weeks after the long motion hearing date. The deadline to complete examinations has been fixed by Chang J. for December 13, 2024. Chozik J. has already ordered that the parties must return before Chang J. to vary that timetable, so in my view it is not open to me to vary the deadline.

[57] The Town requests thirty days to prepare a further and better affidavit of documents. That date well is after the upcoming examination and the deadline to complete examinations. The plaintiffs dispute that it should take so long.

[58] I accept that this motion was adjourned several times through no fault of the Town. The original return date was unilaterally selected by plaintiffs’ counsel. The next return date was adjourned because of a trial conflict for plaintiffs’ counsel. The last return, which was fixed by Chang J. at a case conference, was adjourned because the motion was not scheduled as a long motion as it should have been. Chozik J. also rightly felt that correlative work between the Town’s productions and the additional document requests, which plaintiff’s counsel proposed to do by oral submissions, should have been done in a chart. In my view, none of these procedural delays in this motion being heard were the fault of the Town.

[59] Nevertheless, the Town is in default of its obligation under the Rules to prepare and serve an affidavit of documents outlining all documents within the Town’s possession, control or power. It has conceded deficiencies in its affidavit of documents by producing relevant and previously unproduced documents in response to this motion and by acknowledging that Schedule B and Schedule C to its affidavit of documents are incomplete. Regardless of whether and when the plaintiffs objected to the scope of productions, the obligation to prepare a proper affidavit of documents rested with the Town. It failed to do so.

[60] The timeline to the upcoming continued discoveries is tight. Nevertheless, this motion has been outstanding since April 2024, meaning that the Town has been aware of specific further production requests for months. I give no effect to the Town’s argument that it was only required to respond to the plaintiffs’ production requests as framed and that the plaintiffs ought to have made these requests during examinations for discovery. That submission ignores the Town’s production obligations in rules 30.03 and 30.07 of the Rules.

[61] The Town has had months to consider in the plaintiffs’ concerns and review its records for further relevant documents that ought to have been disclosed in the Town’s original affidavit of documents. Knowing that its affidavit of documents was incomplete – at least in respect of the late-produced documents and admittedly incomplete Schedules B and C – the Town could have (and should have) already been working to update it. The scope of additional relevant documents that I am ordering is not expansive and reasonably flows from documents admittedly not produced. In my view, the production order I am making was reasonably anticipated given how the hearing unfolded. If the Town did not immediately start work on a further and better affidavit of documents after the motion hearing, then that was at its own risk. Potential hard work before the upcoming discovery will then be needed to remedy the Town’s breached documentary disclosure obligations under the Rules.

[62] A further and better affidavit of documents shall accordingly be prepared and served, with production of any additional Schedule A documents in electronic format, by December 3, 2024 at 6:00 p.m. Any relevant documents not produced by the Town by that deadline shall not thereafter be admissible or relied upon by the Town in this proceeding, including at trial, subject to the terms ordered below. This deadline will abridge discovery preparation for the plaintiffs on new documents, but the delays in this motion being heard were not the fault of the Town, so I am not concerned with that.

[63] As noted above, given Chozik J.’s prior endorsement, I cannot vary Chang J.’s timetable order. However, since examinations have not been ordered to be completed until December 13, 2024, the plaintiffs and the Town are free to agree to a new date of the Town’s examination and vary the deadline I have imposed on mutual consent pursuant to rule 3.04 of the Rules.

Disposition

[64] For the foregoing reasons, I order as follows:

(a) The Town shall prepare and serve a further and better affidavit of documents by December 3, 2024 at 6:00 p.m. that includes the following: (i) all relevant documents produced by the Town since the Town’s original affidavit of documents was sworn, including those documents produced in response to this motion; (ii) a complete copy of the noted email in the document at Tab 16 sent on September 10, 2019 at 5:41 PM, with attachment(s); (iii) relevant documents from the appeal to the Building Code Commission referenced in the documents at Tabs 17 and 80, organized into Schedule A and Scheduled B; (iv) relevant documents from the Town’s prosecution of Aaron Breier in connection with the order to comply issued against him as referenced in the document at Tab 20 and the subject matter of the application for a hearing at Tab 80, organized into Schedule A and Scheduled B; (v) notes, records, or other documents relevant to the Town’s decision to subsequently add the Muldoons to the order to comply as produced at Tab 38, organized into Schedule A and Scheduled B; (vi) a particularized Schedule B in accordance with subrule 30.03(2)(b); and (vii) a particularized Schedule C in accordance with subrule 30.03(2)(c). (b) The Town shall forthwith produce copies of the complete productions at Tabs 11-14 of its affidavit of documents. (c) Subject to further court order, any relevant documents not produced by the Town by the deadline ordered above shall not thereafter be admissible or relied upon by the Town in this proceeding, including at trial, unless: (i) the document has been produced by another party in this proceeding including in the third party claim; (ii) production of the document is requested during the Town’s examinations for discovery; (iii) the plaintiffs provide their consent; or (iv) leave of the court is obtained, which may require evidence explaining why the document(s) were not or could not reasonably have been produced in the Town’s initial affidavit of documents or otherwise before the deadline for the further and better affidavit of documents. (d) The balance of the plaintiffs’ motion is dismissed without prejudice to the plaintiffs cross-examining on the Town’s affidavits of documents during examination for discovery and seeking to establish existence and relevance of requested documents, in whole or in part, and seeking a further production order a later date. (e) This order is effective without further formality.

[65] A draft order was not submitted by the plaintiffs or included in the motion materials. If a formal order is required, then the parties may submit a draft order in Word format, with approval as to form and content, to the Milton judicial assistants, Fiona Kelly and Sara Stafford. If the parties cannot agree on a form of order, then each may submit a draft order in the form that they propose and I will settle the form of order myself.

Costs

[66] Costs outlines have been exchanged. There were no offers to settle, but given the potential for divided success I did not take the parties’ costs submissions at the time of the motion hearing. I encourage the parties to settle costs of the motion. If they cannot agree, then written costs submissions shall be exchanged. The plaintiffs shall serve any costs submissions by December 9, 2024. The Town shall serve responding costs submissions by December 16, 2024. The plaintiff shall serve any reply submissions by December 20, 2024. Both sides shall clearly state the amount and scale of costs that they are seeking and/or should be awarded. Costs submissions shall not exceed five (5) pages, excluding any offers to settle and case law, for primary submissions and two (2) pages for the plaintiffs’ reply.

[67] Once served, all costs submissions shall be submitted by email directly to the Milton judicial assistants, Fiona Kelly and Sara Stafford, with proof of service. Unless exchanged and submitted in accordance with the above, the parties shall be deemed to have agreed on costs.

ASSOCIATE JUSTICE TODD ROBINSON DATE: November 27, 2024