Court File and Parties

COURT FILE NO.: CV-21-665617 DATE: 2024 02 02

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF the Construction Act, RSO 1990, c C.30, as amended

RE: PRAXY CLADDING CORP., Plaintiff - and - STONE LAMINA INC. and GCAT GROUP INC. carrying on business as STONE LAMINA, Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: S. Sam, for the plaintiff (moving party) J. Frustaglio, for the defendants

HEARD: December 14, 2023 (by videoconference)

REASONS FOR DECISION (Refusals and Undertakings)

[1] Praxy Cladding Corp. (“Praxy”) moves to compel answers to refused questions and further answers to undertakings given at the examination for discovery of Stone Lamina Inc. (“Stone Lamina”) and GCAT Group Inc. (“GCAT”).

[2] As outlined below, I am granting the motion, in part, and ordering further answers to some of the undertakings as well as answers to many of the refused questions. I am further ordering a deadline to address any examinations arising from answers. I am dismissing the balance of the motion.

Analysis

[3] At an earlier hearing for trial directions in this lien reference, I granted leave for discoveries and directed that the parties exchange affidavits of documents and conduct examinations for discovery. Section 50(2) of the Construction Act, RSO 1990, c C.30 provides that the rules of court apply in lien actions, except to the extent that they are inconsistent with the act. Discovery rules in the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) thereby apply to the parties’ examinations for discovery.

[4] Efforts were made by the parties in advance of Praxy’s motion being brought and after the motion record was served to reduce the number of disputed undertakings and refusals. A majority of the disputed undertakings, refusals, and advisement were resolved. The remaining ones were organized by Praxy into eleven groups. My disposition of this motion follows that grouping and uses the numbering for undertakings, advisements, and refusals in the chart found at Tab A of Praxy’s reply motion record.

[5] In deciding this motion, I have applied the well-established general legal principles developed around refusals and undertakings, which have been recently summarized by Centa J. in Métis National Council Secretariat Inc. v. Chartier, 2023 ONSC 5469 at paras. 8-12. The key principles for the purposes of this motion are as follows:

(a) Under subrule 31.06(1) of the Rules, a person examined for discovery shall answer to the best of their knowledge, information and belief, any proper question that is relevant to any matter in issue in the action. Discovery questions must therefore be relevant to one of the matters in issue, which are defined by the pleadings.

(b) An examining party must not go beyond the pleadings to find a claim or defence that has not been pleaded. Such “fishing expeditions” are not permitted.

(c) Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the position of the parties.

(d) The extent of discovery is not unlimited. The court has an obligation to keep discovery within reasonable and efficient bounds to avoid it becoming oppressive and uncontrollable.

(e) A witness may be questioned for hearsay evidence because they are required at discovery to give not only their personal knowledge, but also their information and belief about the matters in issue.

(f) A witness may be questioned about the party’s position on questions of law.

(g) In determining whether to require a party to answer a question or produce a document, the proportionality factors in rule 29.2.03 of the Rules must be considered. They include whether:

(i) the time required to do so would be unreasonable;

(ii) the expense associated with doing so would be unjustified;

(iii) requiring the party to answer the question or produce the document would cause him or her undue prejudice;

(iv) requiring the party to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(v) the information or the document is readily available to the party requesting it from another source.

[6] Proportionality is, in my view, particularly important in lien actions, which are statutorily prescribed to be as far as possible of a summary character, having regard to the amount and nature of the liens in question: Construction Act, s. 50(3). Where leave is granted for discoveries, as in this case, both the parties and the court must take seriously the summary nature of lien proceedings. Proportionality is not assessed in a vacuum, though. Only the party being asked to provide the answer can reasonably explain why a request is unreasonable because of logistical difficulties in accessing the information, its overall volume, or other reasons. It is incumbent on the objecting party to put their concerns and the reasons for them before the court: Mars Canada v. Bemco Cash & Carry, 2014 ONSC 4172 at para. 20.

Group 1: Undertaking #1(4), 1(5) and 1(6)

[7] These undertakings deal with deficiency rectification costs and costs to complete that were incurred by the defendants as claimed in their Scott Schedule. The original undertakings were given solely with respect to deficiency rectification, but a subsequent undertaking request expanded them to include the defendants’ claims for completion costs.

[8] Undertaking #1(4): I agree that the defendants’ answer is too general and non-responsive. The undertaking, which was expressly given on a “best efforts” basis, was to advise when alleged deficiencies were repaired and, by the agreed extension to the undertaking, when completion costs were incurred.

[9] The defendants’ agreement to make best efforts is significant. “Best efforts” means that a party will make a genuine and substantial search for the requested information and/or documents. It is not an undertaking that is taken lightly. A cursory inquiry is not good enough. If a party is unable to discover the subject of an undertaking, then the party must satisfy the court that a “real and substantial effort” has been made to find what has been requested by the other party. “Best efforts” are measured by the steps that a reasonable person in the same circumstances and of the same nature as the party who gave the undertaking would take: Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415 (Div Ct) at paras. 14-15.

[10] The defendants gave the undertaking. Since they are pursuing a claim for deficiency rectification and completion costs, they should be able to identify the date or date(s) when an alleged deficiency was repaired or a completion cost was incurred. They must otherwise demonstrate that best efforts to confirm the date(s) have been made. There is no such evidence before me. This undertaking remains outstanding. A further answer is required else the defendants must advise what unsuccessful “best efforts” were performed to satisfy the undertaking.

[11] Undertaking #1(5): The defendants’ response is insufficient. A best efforts undertaking was given to confirm “what was required to correct the deficiency including if Stone Lamina had to fabricate a panel and when that panel was delivered to site.” This was expanded to include completion costs. The responses provided are general and there is no evidence of any best efforts being undertaken to confirm the extent of deficiency repair required and performed.

[12] The defendants’ original response in January 2023 was that work remained ongoing. The further response in November 2023 states as follows:

Stone Lamina does not have records of each step that was required to be taken to correct each individual panel. Generally, the panels required Stone Lamina to refabricate, remove and reinstall, readjust, realign, and patch the panels.

[13] The undertaking given was not to provide a general answer. It was a best efforts undertaking to confirm what was required to correct the deficiencies and completion the work. In the absence of any evidence supporting best efforts, a further answer is required either advising what work was performed to rectify each of the alleged deficiencies or outlining what unsuccessful “best efforts” were performed to satisfy the undertaking.

[14] Undertaking #1(6): Similar to the above, the defendants’ answer is insufficient. The undertaking was to advise “the alleged quantum to correct the deficiency” identified in the Scott Schedule. The defendants agreed to extend the undertaking to costs to complete. It was given on a best efforts basis.

[15] I agree with Praxy that there is an inconsistency between the answer given to this undertaking and the answers given to the above undertakings. In answer to undertaking #1(4), the defendants stated that deficiency rectification began when Praxy abandoned the project “until January 16, 2023.” The latest answer given to undertaking #1(5) refers to rectification work in the past tense. The answer to undertaking #1(6) provides costs to correct and costs to complete (including previously unproduced proof of payment pre-dating the examination), but indicates that installation equipment costs are still being finalized. There is no evidence on what “best efforts” were made to identify the alleged quantum to correct the deficiencies and complete the work or why the full quantum has not yet been finalized. A further answer is required or a response outlining what unsuccessful “best efforts” were performed to satisfy the undertaking.

[16] Praxy also argues that the supporting documents provided in answer to undertaking #1(6) refer to invoices that have not been produced. Praxy also asserts that the defendants have not produced agreements or communications with the two rectification/completion contractors. Praxy seeks an order for production of those documents on the basis that it is a proper question arising from the answer given. The defendants argue that the relief requested is beyond the scope of this motion.

[17] Praxy concluded its examination as being subject to any questions arising out of answers to undertakings, under advisements, or refusals. I agree with Praxy that it is entitled to ask questions reasonably arising from the defendants’ answer to the undertaking. However, Praxy has put forward no authority supporting that a party may compel an adverse party to answer follow-up questions by a procedure other than those provided in the Rules where the parties have not previously agreed to that procedure.

[18] In my view, proper questions arising from answers in this case should be asked in accordance with the examination procedures in the Rules. Given the trial dates and trial timetable already in place, any further examination must occur promptly. I am accordingly fixing a deadline for any further examinations arising from answers, with a maximum of one hour of examination per side, subject to the parties’ agreement to extend that time or further order. That is proportionate to the quantum and issues in dispute and appropriate having regard to the summary nature of lien proceedings. If the parties have any concerns, then they are free to agree on a different process or arrange a hearing with me to discuss those concerns.

[19] Accordingly, I am not ordering an answer to the further question at this time. The requested production is beyond the scope of the above undertakings.

Group 2: Undertaking #2

[20] This undertaking deals with the delivery date(s) for certain panels supplied to the site with reference to the document at tab 1173 of Praxy’s affidavit of documents. The defendants’ answer is a series of four dates. I am satisfied this is an insufficient answer. In context, the question was evidently asked about the document. The dates provided need to be contextualized by reference to the document and the various comment boxes connected to specific panels. A complete answer remains to be provided.

Group 3: Undertaking #5

[21] This undertaking deals with responsibility for project delays. Praxy does not dispute that the defendants have answered the undertaking. Rather, the dispute arises from a question asked by Praxy arising from the answer given. The defendants have objected on the basis that the follow-up question is not proper. I agree insofar as the manner in which the question has been asked. Praxy is entitled to ask reasonable questions arising from answers, but unless the parties agree to a particular procedure they must be asked in accordance with procedures under the Rules. I am accordingly not compelling an answer to the follow-up question, at least not at this time. It may be asked in the context of the examination that I am directing may proceed.

Group 4: Undertaking #7

[22] The defendants undertook to advise if the items of work in Praxy’s invoice no. 86212 form part of the base contract or were extras to the contract and were approved. Defendants’ counsel expressly confirmed the undertaking on the record. Praxy argues that the defendants’ answer is insufficient. I agree. The answer provided is general and, frankly, unclear. To be fully responsive, the defendants must clearly specify which items in the invoice are said to be base contract items and which are said to be extras, and to further confirm if the extras were or were not approved.

Group 5: Refusals #3-16, and #45

[23] These refusals all deal with identifying the contracting parties. The defendants submit that Praxy is aware of the entity it contracted with and that the fact of lien security in court makes questions concerning GCAT and Stone Lamina irrelevant. I disagree.

[24] Praxy has joined a breach of contract claim with its lien claim. They are related, but separate claims. If the lien is held to be invalid for any reason, then the contract claim may still continue. The lien security in court is a cheque issued by GCAT, but the motion was brought by both GCAT and Stone Lamina. However, that security is only security for Praxy’s lien. The direct liability of both defendants remains relevant based on Praxy’s pleading that its purchase order was with “Stone Lamina” (defined to be both defendants). The defendants’ statement of defence and counterclaim states that “the parties” entered into the agreement, and advances a counterclaim by both defendants.

[25] Praxy points to the defendants’ responses to information requested under s. 39 of the Construction Act in support of the identities of the contracting parties being a genuine issue in this action. In the defendants’ responses, they take the position that GCAT contracted with the owner, 200 Cumberland Building Group Inc. (“Cumberland”), that Stone Lamina and GCAT entered into a separate agreement, and that Stone Lamina alone subcontracted with Praxy.

[26] I find that there is a genuine issue over the identity of the contracting parties. Praxy claims it contracted with both defendants. The defendants appear to be taking a different position. The issue is raised by the pleadings through lacking clarity on who the defendants mean by “the parties” when considering the position taken in their s. 39 responses. Praxy is entitled to probe the nature of the existence of the alleged contractual relationship between GCAT and Stone Lamina.

[27] I turn now to the specific refused questions.

[28] Refusal #3: Whether the contract between Stone Lamina and GCAT was oral or in writing is relevant. The question shall be answered.

[29] Refusal #4: The date on which Stone Lamina and GCAT entered into their alleged contract is relevant. The question shall be answered.

[30] Refusal #5: I am unconvinced that whether their was a term dealing with holdback is relevant to identifying the parties or any other issue in dispute in this action. The refusal is upheld.

[31] Refusal #6: I am unconvinced that all terms of the alleged contract between Stone Lamina and GCAT are relevant. Some may be, but the question asked is not focused on whether there were any terms that may impact Praxy’s work or that may be for the benefit of Praxy. The question as asked is overbroad. The refusal is upheld.

[32] Refusal #7: I am convinced that payment terms under the alleged contract between Stone Lamina and GCAT are relevant. The question shall be answered.

[33] Refusal #8: I find no relevance in whether Stone Lamina put any markup on invoices passed through to GCAT and, if so, the quantum of markup. It is not relevant to identifying the contracting parties and no argument was made for how it is relevant to any other issue in dispute. The refusal is upheld.

[34] Refusals #9-10: I am not convinced that whether GCAT provided Stone Lamina with any notices of deficiency and whether their contract addressed deficient work and how to correct it are relevant to the pleaded issues around deficiencies in Praxy’s work. Praxy is not a party to any contract between GCAT and Stone Lamina. These refusals are upheld.

[35] Refusal #11: I am unconvinced that the motivation for having Stone Lamina “as a middleman” to avoid claims on the labour and material payment bond is relevant to any pleaded issue in this action. The labour and material payment bond is not at issue in this proceeding. The refusal is upheld.

[36] Refusal #12: I am unconvinced that whether or not there was an agreement between GCAT and Stone Lamina dealing with indemnity for third party claims is relevant to any pleaded issue. No argument was made about this specific refusal and why a contractual indemnity between the two defendants would have any relevance in the absence of a crossclaim. The refusal is upheld.

[37] Refusal #13: I am unconvinced that whether there was an agreed schedule in the alleged contract between GCAT and Stone Lamina is relevant to the issues of delay raised by the defendants. Whether or not Praxy was subject to a completion deadline is separate from whether any completion deadline was agreed between GCAT and Stone Lamina. The refusal is upheld.

[38] Refusal #14: I am unconvinced that the existence of emails detailing the scope and/or terms of the contract between GCAT and Stone Lamina is relevant. The refusal is upheld.

[39] Refusal #15: The question asked deals with any communications between GCAT and Stone Lamina with respect to negotiations about the project or terms of their contract. The question as asked is overbroad. The refusal is upheld.

[40] Refusal #16: The reasons for listing both defendants as claimants in their claim for lien registered against the project lands is not relevant to the pleaded issues. The refusal is upheld.

[41] Refusal #45: I am unconvinced that all applications for payment, including Stone Lamina’s invoices to GCAT and any schedule of values submitted by Stone Lamina, are relevant. The question is not focused on applications for payment that include Praxy’s scope of work. The request is overbroad. The refusal is upheld.

Group 6: Refusals #26-34, and #37, and Under Advisement #3

[42] These refusals and the advisement deal with project delay and certain information concerning the prime contract between GCAT and Cumberland. The defendants argue that the advisement has been answered and the refusals are otherwise irrelevant because the lien has been vacated. They also submit that Praxy’s position is based on speculation.

[43] Although the defendants maintain that they are no longer pursuing a delay claim, delay is a clearly pleaded issue in this action and will be material in deciding whether Praxy breached the subcontract. That, though, does not mean every question relating to delay on the overall project is proper and proportionate.

[44] Refusals #26-28: I agree with Praxy that whether the defendants charged and recovered from Cumberland for any delay-related costs, including demobilization and remobilization, is relevant to assessing the defendants’ pleaded impacts from the delays allegedly caused by Praxy. The defendants have conceded that they are no longer pursuing a claim for delay-related losses. However, Praxy also pleads that the defendants were responsible for delay. I find that whether the defendants charged for and recovered any delay-related costs is relevant to the issue of who caused delay. These questions shall be answered.

[45] Refusals #29 and 32: Given the position taken by the defendants that GCAT did not have privity of contract with Praxy, the total contract price between GCAT and Cumberland and the amounts paid by Cumberland to GCAT are relevant to determining GCAT’s holdback liability, which may be material since the lien security was paid by GCAT (albeit that both defendants brought the vacating motion). These questions shall be answered.

[46] Refusals #30-31: I am not convinced that all of GCAT’s applications for payment submitted to Cumberland and all payment certificates, if they exist, are relevant. The question as asked is not focused on Praxy’s scope of work and is thereby overbroad. These refusals are upheld.

[47] Refusal #33: Confirming whether the prime contract funds have been paid to GCAT is not relevant. There are a plethora of reasons for which funds paid by Cumberland under the prime contract may not have gone directly to GCAT. I have ordered that the amounts paid by Cumberland to GCAT under the prime contract be provided. I am unconvinced that it is relevant to the parties’ dispute in this action whether GCAT received the payments itself. The refusal is upheld.

[48] Refusal #34: The conditions of release of funds from a lawyer’s trust account are not relevant. This refusal is upheld.

[49] Refusal #36: I am unconvinced that confirming GCAT’s last day on site is relevant to the issues of delay in this action. The refusal is upheld.

[50] Refusal #37: I am unconvinced that whether ongoing work being done on site by GCAT was extra work under the contract is relevant to the issues of delay in this action, which are mainly relevant to deciding whether delay is a basis for a breach of contract by any of the parties. The refusal is upheld.

[51] Advisement #3: The dispute on this advisement has to do with the follow-up question asked by Praxy, which arises from the answer given by the defendants. For reasons discussed above, I am not ordering an answer to a follow-up question arising from an answer. The question is properly asked at a continued examination that I am directing may proceed.

Group 7: Refusals #17-20, and #38

[52] These refusals deal generally with questions about the completion date for the project. Praxy submits that they are relevant to the delay issues in the litigation. The defendants submit that any agreed completion date between GCAT and Cumberland is not relevant to any contractual completion date under Praxy’s subcontract. I agree.

[53] Refusals #17-19 and 38: All of these deal with the completion date as between GCAT and Cumberland. I am not convinced that these questions are relevant. The paragraphs from the amended statement of claim and statement of defence and counterclaim cited by Praxy all deal with the completion deadline under the agreement with Praxy. Notably, Praxy points to the defendants’ pleading at para. 6 of their statement of defence and counterclaim that “The Project was scheduled to be completed in 90 days”. However, a reference to “scheduled” does not necessarily mean the overall project schedule. I was directed to no question during discovery seeking to clarify the matter. I note that the “Project” is defined in para. 5 as Praxy’s supply of labour, material, and service with respect to the Yorkville Private Estate project and is used in that context in other paragraphs of the defence.

[54] Praxy also argues that an upstream completion date would shed light on the contractual period for completing the work and any corresponding delay. I am not convinced by that argument. A contractor is not precluded from imposing a contractual completion deadline for a subcontractor’s work that varies from the contractor’s own completion deadline for the same work. The pleaded issues are whether Praxy was subject to any completion deadlines and, if so, whether Praxy breached the subcontract by failing to meet that deadline. The instances of delay are particularized at paras. 11-14 of the statement of defence and counterclaim. I have been directed to no allegation of damages associated with extended duration of the overall project. The allegations all appear to be focused on direct impacts and losses from delays by Praxy in performing its work.

[55] It would have been appropriate for Praxy to probe the specifically itemized delay losses as pleaded by the defendants, which may have established relevance of overall project delay. I have not been directed to any evidence or line of questioning supporting that project completion deadlines and overall project delay have any bearing on the defendants’ delay-related allegations. Non-critical path delays, for example, may result in delay-related losses without ever impacting the critical path of a project. Such delays would thereby have no bearing on planned or actual completion dates for the overall project.

[56] For these reasons, the defendants’ refusals of these questions are upheld. It will remain open to Praxy to argue at trial that any delay allegations ultimately advanced by the defendants at trial cannot be properly assessed without knowing whether there was any impact to the overall project from delays in Praxy’s scope of work. That will depend on the nature of the delay allegations advanced by the defendants at trial. If, ultimately, the defendants do require evidence of upstream delay to prove their delay allegations (and, in my view, the defendants ought to know if they will by this point), then their refusal of these questions works against them, particularly now that it has been argued and upheld.

[57] Refusal #20: This refusal deals specifically with why a completion date of May 10, 2019 was initially included in Praxy’s purchase order. Discovery evidence was obtained that there was no exact completion date. However, the defendants plead at para. 6 of their statement of defence and counterclaim that Praxy’s work was scheduled to be completed within 90 days. In my view, since the defendants’ pleaded position is that there was a contractual completion deadline, Praxy is entitled to probe the reasons for putting the date in the purchase order, regardless of whether it was ultimately struck out. This question shall be answered.

Group 8: Refusals #21-#25

[58] These refusals deal with delay in the delivery of materials.

[59] Refusal #21-22: Praxy argues that timelines or schedules in respect of the delivery of panels (installation of which was within Praxy’s scope of work) and actual delivery of the panels are relevant to the progress of Praxy’s scope of work and its ability to perform it. I agree. The pleadings support relevance, notably paras. 6 and 8 of the amended statement of claim and paras. 9, 10, 11, 35(b), and para. 35(d) of the statement of defence and counterclaim. These questions shall be answered.

[60] Refusal #23: The defendants conceded during oral submissions that this question would be answered on a best efforts basis.

[61] Refusal #24: Praxy requested production of bills of materials and delivery receipts for the natural stone orders of either Stone Lamina or GCAT during the duration of the project. I am unconvinced that bills of materials and delivery receipts for all natural stone orders are relevant. Praxy has not correlated all natural stone supplied by the defendants to Praxy’s scope of work.

[62] Praxy pleads at para. 4 of the amended statement of claim that its scope of work was “the installation of Stone Lamina panels, aluminum rails and clips, Rockwool insulation and Blueskin membrane and the supply and installation of galvanized angles and brackets”. That is consistent with the defendants itemization of Praxy’s scope of work at para. 6 of their statement of defence and counterclaim. I have been directed to nothing in the record or transcript supporting that the only purpose for the natural stone sourced by the defendants was for the panels that were fabricated by or on behalf of the defendants to be installed by Praxy or other work to be performed by Praxy. Absent that correlation, the request appears overbroad. Relevance has not been established. This refusal is upheld.

[63] Refusal #25: Praxy requested that the defendants confirm the materials on site as of May 3, 2021 (the day before Praxy’s claims it was terminated). In context, the question arose from a discussion about panels remaining on site. The objection raised by defendants’ counsel was that an undertaking had already been given for it. There was no refusal. Praxy acknowledges that a similar question was asked about the panels remaining on site, which was taken under advisement and has been answered. At the time of defendants’ counsel objecting to the undertaking request as a duplicate, Praxy’s counsel did not respond that the scope of this requested undertaking was different, although now takes that position on this motion. In my view, in context of the exchange between counsel on the record, this is not properly characterized as a refusal.

Group 9: Refusals #35 and #39

[64] These refused questions were targeted at the parties’ respective damages claims: clarification of Stone Lamina’s position on a portion of Praxy’s claim and proof of payment for a portion of the defendants’ claim.

[65] Refusal #35: Praxy sought specific confirmation on whether the defendants agreed or disagreed with the demobilization and remobilization dates outlined in one of Praxy’s productions. I am satisfied that Praxy’s amended refusals and undertakings chart does not include the full answer provided by the defendants. The defendants’ chart with answers states, in full: “This question has been answered: Disagree. Stone Lamina can confirm no to little progress by Praxy during the mentioned duration.” I agree with the defendants that the question has been answered. As clearly stated, they “disagree”.

[66] Refusal #39: Praxy sought proof of payment, including payroll or pay statements, for three individuals whose time is claimed in produced daily logs that relate to the remediation and rectification work. The defendants’ failure to provide proof of payment is to their detriment in establishing loss at trial. Regardless, since the defendants are claiming time and costs for the three individuals as damages, proof of payment is relevant to the defendants’ pleaded damages. This question shall be answered, but only to the extent of proof of payment for the hours and amounts forming part of the defendants’ damages claim. Other irrelevant information in any proof of payment documents may be redacted.

Group 10: Refusals #40-44

[67] These refusals all deal with the understanding of the defendants’ deponent for discovery, Alborz Razavi, regarding terms in Praxy’s quotation. Praxy argues that Mr. Razavi is the person who reviewed the quote and that Praxy has pleaded the quotation forms part of the contract documents at para. 4A of the amended statement of claim.

[68] The defendants argue that Mr. Razavi’s subjective understanding of Praxy’s quotation is irrelevant and that it is seeking “yet another speculative, overreaching discovery attempt and amounts to a fishing expedition.” I disagree. Praxy has pleaded that the quotation formed part of the parties’ contract. It is undisputed that Mr. Razavi reviewed Praxy’s quotation and issued the purchase order. Regardless of whether the evidence is ultimately admissible at trial, Mr. Razavi’s understanding of the quotation is relevant for discovery purposes. These questions shall be answered.

Group 11: Refusals #1 and #2

[69] These refusals deal with production of internal communications of the defendants, namely:

(a) Refusal #1: To produce all internal communications related to Praxy during the project; and

(b) Refusal #2: To produce any communications, whether the correspondence was related to Cladify (the completion contractor), Stone Lamina or GCAT, related to the completion of the work.

[70] The production request is based on speculation that additional communications exist and have not been produced. Praxy submits that fewer that five emails of internal communications have been produced. However, it has tendered no evidence in its motion record addressing the scope of production made by the defendants and I have been directed to nothing in the transcript supporting the existence of relevant, unproduced documents.

[71] The fact that Mr. Razavi gave evidence on the existence of some internal email and text communications does not itself mean that the defendants have failed to comply with their production obligations. Praxy’s counsel did not ask questions delving into the substance of those emails and text messages and their relevance to pleaded issues. I am not satisfied that Praxy has met its onus of demonstrating that there are relevant and unproduced communications that the defendants have failed to produce. These refusals are upheld.

Disposition

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

(a) The defendants shall provide answers or further answers in accordance with the foregoing reasons to the following questions by February 21, 2024:

(i) undertakings #1(4), 1(5), 1(6), 2, and 7;

(ii) refusals #3, 4, 7, 20-22, 26-29, 32, and 39-44; and

(iii) refusal #23, to be answered on a best efforts basis.

(b) Questions arising from answers given, if any, shall be asked and answered by further oral examination to be completed by March 1, 2024. Each side shall be entitled to up to one (1) hour of further examination time, subject to the parties’ agreement to extend that time or further court order.

(c) The balance of Praxy’s motion is dismissed, without prejudice to seeking information and productions arising from answers given in accordance with subparagraph (b).

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

[73] My release of these reasons is later than I had anticipated it would be at the hearing. That is the result of unforeseen circumstances beyond my control that have impacted my schedule since the hearing. The deadline that I have ordered for answers accordingly falls after the parties’ pending settlement conference. I encourage Praxy to promptly identify which ordered answers, if any, are viewed as making a difference in the upcoming settlement discussions. I also encourage the defendants to focus on having those answers available for the settlement conference.

Costs

[74] Costs outlines have been exchanged. I encourage the parties to settle costs, but if they cannot, then costs submissions shall be made orally by thirty (30) minute hearing booked on one of my construction lien motions lists. Praxy’s shall make submissions first, with each party being entitled to ten (10) minutes of submissions. Praxy shall have five (5) minutes of reply. Any case law or offers to settle relied upon by either side shall be exchanged, submitted to my Assistant Trial Coordinator (ATC), and uploaded to CaseLines at least five (5) days prior to the hearing.

[75] The hearing for costs submissions shall be booked (but not necessarily heard) directly through my ATC within thirty (30) days of this decision being released, failing which the parties shall be deemed to have agreed on costs.

ASSOCIATE JUSTICE TODD ROBINSON DATE: February 2, 2024