Court File and Parties
Citation: 2025 ONSC 5483
Court File No.: CV-21-1598-0000 (London)
Date: September 25, 2025
Ontario Superior Court of Justice
Between:
CLC Tree Services Ltd., Plaintiff
– and –
Davey Tree Expert Co. of Canada, Limited, Davey Resources Group, Inc., The Corporation of the City of London, Andrew McKenzie Beaton, John Stuart Parsons, and Timothy Martin Holley, Defendants
Counsel
Steven M. Bookman, Maia Rabinovitch, and David Eddenden for the Plaintiff
Patrick W. Brennan for the Defendants, Corporation of the City of London, Andrew McKenzie Beaton and John Stuart Parsons
M. Theresa Cesareo and Nicole Tzannidakis for the Defendants, Davey Tree Expert Co. of Canada, Davey Resources Group, Inc., and Timothy Martin Holley
Heard: April 2 and June 2, 2025
Ruling on Motion
BEZAIRE J.
Introduction
[1] The Plaintiff, CLC Tree Services Ltd. ("CLC") and the Defendants, Davey Tree Expert Co. of Canada, Limited and Davey Resources Group, Inc. (collectively, "Davey") are corporations that provide arboricultural and vegetation management and related services. The individual Defendant, Timothy Martin Holley, was a Davey employee.
[2] The Defendant, The Corporation of the City of London, uses arboricultural and vegetation management services, which it contracts out to third parties, such as CLC and Davey. The individual Defendants, Andrew McKenzie Beaton and John Stuart Parsons were London employees.
[3] The Statement of Claim was issued in or around January 2021. CLC alleges that London has for many years granted preferential treatment in awarding its arboricultural and vegetation management contracts to Davey to the exclusion of CLC and almost every other company that offers these services. CLC seeks compensation for its resulting damages.
[4] The Defendants subsequently served their Statements of Defence, denying the allegations against them.
[5] Examinations for Discovery were held in the spring and fall of 2022. CLC and London have now brought undertakings and refusals motions, which were heard together on April 2 and June 2, 2025.
[6] CLC seeks to compel answers to undertakings and refusals given on the May 4, 2022 Examination for Discovery of the Defendant, Andrew McKenzie Beaton and the November 2, 2022 Examination for Discovery of the Defendant, London by its representative, Douglas MacRae. CLC submits that the answers sought are integral to demonstrating that preferential treatment shown by London has resulted in a monopoly for Davey.
[7] London seeks answers to undertakings and refusals given on the May 9 and 10, 2022 Examination for Discovery of the Plaintiff, represented by Calvin Curtis McCallum. London submits that the allegations in the Statement of Claim are largely based on rumours, unnamed sources, and undefined damages and that the answers sought are necessary to define the scope of the allegations regarding liability and damages.
[8] These motions appear to have been necessitated by the parties rigidly approaching the discoveries from two competing vantage points, without discussing the questions and answers further and without appreciating or understanding the difficulties the other party had in answering the questions and understanding the scope of the claim.
[9] London understandably seeks to better understand and narrow in scope the case it must meet. At the same time, CLC is understandably not yet in a position to narrow its case. It is still collecting evidence, including answers to the Defendants' undertakings, and obtaining expert reports.
[10] While we are now nearly three years post-examinations and CLC should be better positioned to define or narrow its claims, some of the Defendants' undertakings do continue to remain outstanding and are necessary for CLC's claims to be defined.
[11] It was also evident during the hearing of the motion that there was confusion amongst counsel as to what was being asked and what was still outstanding. This confusion could have been much more easily and cost-effectively resolved by counsel calling each other and working together to ensure prompt and complete answers are provided.
[12] The value of a phone call cannot be overstated. Parties and their counsel need to better work together to ensure relevant documents are provided, and claims are better defined, in a timely manner. This is an obligation that rests on all parties and their counsel. Had this occurred here, I am confident that many of the undertakings and refusals would have been answered well before the hearing and without the need for motions.
[13] Unfortunately, it was not until after these motions were brought, and even during the hearing of these motions, that many of the undertakings and refusals were answered. This complicated the motions by making it difficult for the court to keep track of the undertakings and refusals that remained outstanding and required a Ruling.
[14] My Rulings with respect to the undertakings and refusals that I understand remain in dispute as of June 2, 2025 are set out below. I understand that all other undertakings and refusals have been resolved.
[15] In the event I missed an undertaking or refusal that requires a Ruling, I invite the parties to contact Trial Coordination to schedule a brief Case Conference at a mutually agreeable 9:00 a.m. time slot.
Analysis
[16] The governing principles for undertakings and refusals motions are well set out in F.K. Machinery Limited v. Exxonmobile Canada Products Ltd., 2022 ONSC 3357 at para. 14. They are as follows and have guided my Rulings herein:
(a) The Rules envision a broad scope for oral discovery. Rule 31.06 provides that a person examined for discovery is obliged to answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in an action;
(b) The modern trend is in the direction of complete discovery;
(c) As Rule 31.06 makes clear, relevance is the guiding standard;
(d) Relevance does not exist in the abstract. It is about the relationship that an item of evidence has to one or more live issues in the case, as identified by the pleadings. Relevance is not a significant threshold. To be relevant, a document, or a question posed on examination for discovery must, as a matter of logic and human experience, make the existence of a fact in issue more or less likely;
(e) The requirement to answer all relevant questions and produce all relevant documents is tempered only by sustainable claims of privilege and the overarching requirement of proportionality, having regard to the importance and complexity of the issues and the amount involved in the proceeding;
(f) Sometimes a party is asked a proper question during oral discovery and does not have the answer at his or her fingertips. In those circumstances, parties often undertake to make inquiries and to provide the answer in due course. An undertaking is in the nature of a promise. When an undertaking is given, the party is obliged to provide the answer; and,
(g) Sometimes an undertaking is made in the form of a promise to use one's best efforts to locate a document or to obtain information. "Best efforts" is an objective standard. It is measured by what a reasonable person would, in all the prevailing circumstances, consider best efforts to be.
Plaintiff's Motion – Outstanding Undertakings and Refusals on the May 4, 2022 Examination for Discovery of the Defendant, Andrew McKenzie Beaton
[17] Regarding the Examination for Discovery of the Defendant, Mr. Beaton, there are two questions that were taken under advisement and one refusal that remain in dispute. My Ruling with respect to each is set out below.
Under Advisement No. 6 and Refusal No. 7: Human Resources File
Under Advisement No. 6: To provide a copy of Mr. Beaton's Human Resources file from the City of London, from January 1, 2018 to date
Refusal No. 7: To provide a copy of Mr. Beaton's Human Resources file from the City of London, from the beginning of his employment.
[18] Under Advisement No. 6 and Refusal No. 7 are identical requests. CLC restricted its request to only those portions of the file relating to complaints regarding Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies.
[19] CLC provided evidence that complaints were made, including at a public meeting where it asserts London's staff attended and took notes. Counsel for London reviewed the HR file and confirmed in a letter dated April 24, 2024 that the vast majority of Mr. Beaton's file is non-responsive to CLC's request but that the file does contain typewritten notes of individual interviews regarding various and wide-ranging complaints, some of which fall within the ambit of CLC's request.
[20] London submits that there are important privacy and confidentiality considerations involved in producing the HR file, particularly where the documents relate to an alleged grievance or complaint by a third party. London must comply with its own confidentiality policies in terms of protecting the relevant third parties. Further, London submits that the request is too broad. Mr. Beaton started working for London in 1996 and went right into the Forestry Department. London requests that CLC better define the scope of its claims in terms of the relevant dates.
[21] I find that any complaints pertaining to Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies is relevant to the issues in dispute in this action and shall be disclosed. Mr. Beaton is a party to this litigation and the alleged complaints go directly to the issues in dispute and should not be time-limited. Further, the persons who lodged the complaints are potential witnesses whose names should similarly be disclosed. Any privacy issues can be addressed by the parties and their counsel holding the information in confidence.
[22] Accordingly, I order that all complaints and notes contained in Mr. Beaton's file regarding Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies shall be produced. The parties and their counsel shall maintain the information disclosed in strict confidence and shall not disclose it, or otherwise use it, for any purpose other than the subject litigation.
Under Advisement No. 7: Davey Invoices
Under Advisement No. 7: To provide a summary of all invoices and copies of all invoices submitted by Davey to the City of London, in respect of capital works projects.
[23] CLC advised that following the commencement of this motion, London provided copies of the invoices up until 2021. CLC is simply seeking the balance of the invoices since 2021.
[24] CLC submits that the invoices from 2013 to date and ongoing are relevant. They contain the names of potential witnesses. Further, CLC's accountant, Mr. Kerztman, provided an Affidavit sworn December 6, 2024, in which he attests that in order to provide his expert report, he requires the invoices pertaining to capital works projects contracted directly from London to Davey.
[25] London submits that it does not categorize projects in the same way CLC may. It has made best efforts to provide all invoices for its capital projects, some of which may not involve forestry issues. Further invoices can be provided but London submits that there should be an end date for these invoices.
[26] I do not agree. CLC takes the position that the preferential treatment remains ongoing, making the updated invoices relevant as well. Accordingly, and given London has already provided copies of the invoices up until 2021, I order that London shall provide the remaining invoices since 2021 to date and ongoing.
Plaintiff's Motion – Outstanding Undertakings and Refusals on the November 2, 2022 Examination for Discovery of the Defendant, London by its Representative, Douglas MacRae
[27] Regarding the Examination for Discovery of the Defendant, London by its representative, Mr. MacRae, there is one question that was taken under advisement and three refusals that remain in issue. My Ruling with respect to each is set out below.
Under Advisement No. 2: Project Managers
Under Advisement No. 2: To provide the names of each and every project manager working for the City of London between 2019 right up to date, who would have had any involvement in a project that required the assistance or involvement of the Forestry Department.
[28] CLC submits that it requires the names of the project managers directing forestry projects as they are potential witnesses.
[29] London submits that the names of the project managers are on the invoices that have been provided.
[30] I find that this request is satisfied by the provision of the invoices (as noted at Under Advisement No. 7 on the Examination for Discovery of Mr. Beaton). However, if any of the invoices provided, or to be provided, do not contain the name of the project manager, CLC shall advise London and London shall forthwith provide the name of the project manager related to those invoices.
Refusals No. 1, 3, and 4: Complaints and Grievances Regarding Mr. Beaton
Refusal No. 1: Is the witness aware of any grievances that have been filed with respect to Mr. Beaton?
Refusal No. 3: Did the witness make any inquiries or was information provided to the witness, for instance by Mr. Parsons or anyone else, that there might have been a lot of discontent regarding Mr. Beaton and the way he interacted with employees of the Forestry Department?
Refusal No. 4: Was the witness aware there was a meeting held at Carling Arena a short while before Mr. Beaton was promoted to the manager of forestry in which employees of the Forestry Department attended to voice and air complaints they had about Mr. Beaton?
[31] Refusals No. 1, 3 and 4 all relate to alleged complaints and grievances regarding Mr. Beaton.
[32] CLC submits that Mr. MacRae, as the employee in charge of the Forestry Department, would be the person who has specific knowledge of any such complaints or grievances. Further, CLC produced an affidavit of Tim Whitworth sworn February 8, 2024, detailing complaints he and others made regarding Mr. Beaton.
[33] London submits that this request is a fishing expedition designed to attack Mr. Beaton's character and ought to be refused.
[34] As noted above, I find that Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies is relevant to the issues in dispute. Some of the questions as worded are, however, too broad. For example, any and all potential grievances are not necessarily relevant. As such, the scope of this question should be better defined.
[35] Accordingly, I order that London, by its representative, Mr. MacRae:
(a) shall answer the question at Refusal No. 1 but only with respect to grievances or complaints, if any, pertaining to Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies.
(b) shall answer the question at Refusal No. 3 but only with respect to grievances or complaints, if any, pertaining to Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies.
(c) shall answer the question at Refusal No. 4 and any follow-up questions shall be restricted to grievances or complaints, if any, pertaining to Mr. Beaton's relationship with Davey, Mr. Holley and the manner in which Mr. Beaton operates his department to the exclusion of other companies.
Defendant, London's Motion – Outstanding Undertakings and Refusals on the May 9 and 10, 2022 Examination for Discovery of the Plaintiff, represented by Calvin Curtis McCallum
[36] Regarding the Examination for Discovery of the Plaintiff, CLC by its representative, Mr. McCallum, counsel kindly provided an updated Undertakings and Refusals chart, which is attached as Schedule A, and sets out the questions that remain in dispute and the answers received to date.
[37] My Rulings with respect to the questions that remain in dispute are set out below.
Refusal No. 3: Witness List
Refusal No. 3: To provide a list of names and the contact information of potential trial witnesses to Mr. Belcher.
[38] London submits that because the allegations involve conspiracy, CLC must commit to a witness list so that London can understand the case it has to meet. London relies on r. 25.06(8), which provides that where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
[39] I find that CLC has partially answered this question with the provision of the witness list set out at Schedule A. CLC has not yet spoken to each of the potential witnesses. CLC agreed to provide further information once all witnesses are interviewed. This is in my view reasonable. London has the complete list CLC has at present.
[40] I do not, however, see that CLC has provided contact information for the witnesses. To the extent contact information has not yet been provided, I order that CLC shall provide the last known contact information for each of the listed witnesses within 30 days. Further, I order that CLC shall provide any additional witness names as they become known and that a final witness list for trial shall be provided no later than 30 days before trial.
Refusals No. 13 and 37, Undertakings No. 34 and 36, and Under Advisement No. 8 and 11: Financial Documentation and Information
Refusal No. 13: To provide the financial statements for CLC since 2014.
Refusal No. 37: To provide CLC's financial statements and its tax returns from the year 2014 forward.
Undertaking No. 34: To provide some evidence of the gross sales value from 2014 to 2019 as it relates to subcontracts.
Undertaking No. 36: To provide a list of all of CLC's out-of-pocket expenses that they say relate to the claim and are going to be sought from the Defendants.
Under Advisement No. 8: To provide: (1) the overall sales volume on a yearly basis, and (2) the sales volume specifically related to subcontractor work that was performed between 2014 and 2019
Under Advisement No. 11: To provide the complete history of CLC's charges for subcontract work done 2014 to present.
[41] London submits that the requested financial documents and information is relevant to the sales volume associated with CLC's subcontract work and its overall sales volume. London requires the financial information and documentation to do its own assessment of CLC's potential damages.
[42] CLC submits that it has retained a forensic accountant to provide a complete report. London will receive a copy of the report, along with the documents the accountant reviewed, in due course. CLC takes the position that it would be a violation of its privacy to produce the documents at this stage.
[43] I do not agree. CLC has put its financial circumstances in issue in this action. London is entitled to conduct its own review and assessment of CLC's potential damages. While CLC's accounting report may be helpful for London to understand CLC's theory of its losses, there is no authority to delay production pending service of CLC's report.
[44] Accordingly, I order that CLC shall answer Refusal No. 13 and 37, Undertaking No. 34 and 36, and Under Advisement No. 8 and 11 within 30 days.
Refusal No. 19: Document Source
Refusal No. 19: To advise how this document came into CLC's possession (referring to the November 2, 2012 letter from Tim Holley).
[45] I find that CLC has answered this question as noted at Schedule A. The document came from counsel such that the source is privileged.
Refusal No. 20: Equipment Inventory
Refusal No. 20: To make inquiries to find out when CLC started keeping an inventory list of its equipment and to produce that list from 2014 forward as far back as it exists.
[46] The parties agreed at the hearing of the motion on June 2, 2025 that this question was answered on or around May 26, 2025.
Refusal No. 21: Section 6.3 Requirements
Refusal No. 21: To advise whether CLC met the specific requirements outlined in section 6.3 including all of the subsections (a) through (m) in 2014.
[47] London submits that this question remains outstanding as no documentation has been provided. CLC submits that this question has been answered as set out at Schedule A.
[48] I find that this question has been answered. The question did not ask for documentation to be provided.
Refusal No. 22: Addendum Requirements
Refusal No. 22: To advise whether CLC met the requirements on the second page of the addendum under the heading "Clarification" and under the heading "Additional submission requirements" in 2014 and if they did, to provide supporting evidence to establish that.
[49] CLC submits that this question was answered at Undertaking No. 43. I agree that CLC has partially answered this question. It has not, however, provided supporting evidence, or confirmed that no such evidence exists.
[50] I order that CLC shall provide supporting evidence, or alternatively confirm that no such evidence exists, within 30 days.
Refusal No. 23: Minimum Equipment Requirements
Refusal No. 23: With respect to Tab 47 of London's Affidavit of Documents, section 1.12, to advise if CLC met the minimum equipment requirements and to provide supporting evidence in that regard.
[51] London submits that this question remains outstanding. The crux of its case relates to whether CLC met the necessary requirements, and it requires evidence of their equipment to determine same. The equipment requirements are contained within the documents exchanged.
[52] CLC submits that the request is too broad to answer. CLC asked London to narrow the question to the list of equipment it required, but London did not provide a narrowed list.
[53] I order that CLC shall use best efforts to answer this question within 30 days. It is relevant to the issues in dispute. If CLC does not have supporting evidence of its equipment, it shall advise that it does not have supporting evidence.
Refusal No. 24: Section 2.0 and 2.2 Requirements
Refusal No. 24: At the time of the tender, did CLC meet the requirements in s. 2.0 and 2.2 and if so, to provide supporting documentation in that regard.
[54] CLC submits that this question has been answered. While CLC initially took the position that the question was too broad and asked that it be narrowed, it ultimately provided its answer in its Responding Motion Record, as set out at Schedule A.
[55] London submits that this question remains unanswered. No supporting documentation has been provided, nor has CLC confirmed that no such documentation exists.
[56] I find that CLC has partially answered the question as set out at Schedule A but has failed to answer the second part pertaining to supporting documentation. I order that CLC shall provide its supporting documentation, or confirm that no such documentation exists, within 30 days.
Refusal No. 26: Particulars of Alleged Damage
Refusal No. 26: With respect to the allegation that Davey have caused CLC significant monetary damage, to provide particulars of when exactly they did whatever it is CLC is alleging, where that happened and what exactly it is that CLC is alleging that was done to support that allegation.
[57] At the hearing of the motion, there appeared to be some confusion regarding what London sought to obtain. The Court directed London to clarify its question and CLC to provide an answer to the question prior to the return of the motion on June 2, 2025.
[58] By letter dated May 30, 2025, counsel for CLC has now provided an answer in response to this question. I find that CLC has answered this question to the best of its ability. The remaining particulars are dependent on documents or clarification to be provided by London.
[59] Accordingly, I order that once CLC receives the list of locations/projects from the City that were redirected to Davey instead of being made available to the contractor to subcontract to CLC from London and/or clarification regarding what London seeks respecting the particulars of the mode or methods deployed by the defendants to have caused the alleged monetary damage as set out in counsel's May 30, 2025 letter, CLC shall forthwith provide any further answer to Refusal 26.
Refusal No. 27: Direct and Biased Actions
Refusal No. 27: Regarding para. 50 of the Statement of Claim, what are the multiple examples of direct and biased actions and efforts taken by the Davey Tree defendants specifically.
[60] CLC initially refused to answer the question on the basis that it is a legal question that refers to competition laws. CLC did, however, ultimately provide a non-exhaustive list of examples as set out at Schedule A.
[61] I find that CLC has now answered this question as set out at Schedule A.
Refusals No. 33 to 36: Investigative Report
Refusal 33: To advise when the report was commissioned and when the investigator was retained.
Refusal 34: To provide the contents of the report including whether it includes surveillance and interviews and Refusal 35: And if so, surveillance and interviews of which individuals and the dates of those interviews.
Refusal 36: Is CLC treating this report as akin to a surveillance report? Is it an expert report? Can you give me an indication in that regard?
[62] Refusals No. 33 to 36 pertain to the investigative report commissioned by CLC's counsel in or around October 2020. The report was prepared by investigator, Jeff Filliter of Haywood Hunt and Associates Inc.
[63] CLC submits that the report was prepared in contemplation of litigation and is privileged. CLC undertakes not to call the investigator as a witness or rely on the report at trial. CLC did, however, advise that the report does not contain surveillance. The investigator spoke with unnamed individuals who wished to remain anonymous and as such, the report does not contain their names or the dates or contents of their interviews.
[64] Counsel for CLC provided the Court with a copy of the report to review. It is labelled "Private and Confidential" and indicates it was prepared in contemplation of litigation as counsel for CLC indicated.
[65] I am satisfied based on my review of the report that it is subject to litigation privilege and need not be disclosed, particularly given CLC has undertaken not to call the investigator at trial. CLC has provided an accurate description of the report such that no further particulars need be provided. Accordingly, CLC has properly refused to answer Refusals No. 33 to 36.
Undertakings No. 40 to 42: Davey Tree Invoices and Allegations
Undertaking 40: To make best efforts to provide the time period for Davey Tree invoices to the City of London
Undertaking 41: To identify which invoices para. 26 of the Statement of Claim applies to.
Undertaking 42: To identify the invoices to which this specific allegation relates with respect to the 40% (referring to para. 19 of the Amended Reply).
[66] London submits that it requires a time frame for CLC's claims to determine the scope of the claim and extent of any damages claimed.
[67] CLC submits that it could not answer these questions without first being provided with the Davey invoices, which were requested as part of its undertakings and refusals motion. London ultimately produced a 102-page document containing limited capital invoices from 2018 to 2021 and as at May 26, 2025, CLC was in the process of reviewing the invoices to provide a list.
[68] Counsel for CLC also provided a letter dated May 30, 2025 in which it referenced the time frame for CLC's monetary losses to include 2013 and 2019. CLC also submits that the preferential treatment remains ongoing, such that there would be no end date.
[69] As noted above, I agree that CLC need not provide an end date given the ongoing nature of its claims. I also find it reasonable for CLC to require the invoices before answering this undertaking.
[70] Accordingly, I order that CLC shall, within 30 days of receiving the remaining invoices from London (as noted above at Under Advisement No. 7 on Mr. Beaton's examination), provide answers to Undertakings No. 40 to 42.
Undertaking No. 47: Conversations Between Mr. Holley and Mr. Beaton
Undertaking No. 47: With respect to para. 15 of the Amended Reply, to advise whether anyone at CLC has heard conversations between Mr. Holley and Mr. Beaton to this effect and to provide information or evidence regarding this allegation.
[71] London submits that the identity of the potential witness(es) should be provided so that London can investigate the claims.
[72] In response to the undertaking, CLC initially advised that one of its current staff members witnessed conversations between Mr. Holley and Mr. Beaton and that if CLC intends to call this person as a witness at trial, the name and will say statement will be provided. Then, on March 26, 2025, CLC advised that it would not be calling this person as a witness. The individual's name and contact information has not been provided.
[73] CLC cannot withhold the identity of a potential witness, even if that witness is a CLC employee. The witness' name and last known contact information should be provided on the understanding that London will not contact the witness so long as the witness remains in CLC's employ.
[74] I order that CLC shall provide the name and last known contact information of the potential witness(es) within 30 days. CLC shall also advise whether or not the witness continues to be an employee of CLC, which shall determine whether or not it is appropriate for London to contact the witness.
Undertaking No. 48: Information or Evidence Regarding Para. 17 of the Reply
Undertaking No. 48: With respect to para. 17 of the Reply, to provide information or evidence regarding this allegation.
[75] London submits that this undertaking remains outstanding. CLC has provided its theory of the case but has not provided any information or evidence to support its theory.
[76] CLC's answer to this question is set out at Schedule A. I agree with London that the answer is general and does not refer to any specific evidence. I order that CLC shall within 30 days answer this question by providing the information or evidence it is relying on in support of para. 17 of the Reply. If there is no specific evidence on which CLC relies, CLC shall also advise of same. London is entitled to particulars of para. 17 of CLC's Reply.
Undertaking No. 57: Evidence Supporting Para. 20
Undertaking No. 57: To the extent that the knowledge comes from outside CLC, to advise whatever evidence CLC or otherwise are relying on for para. 20.
[77] The parties agreed at the hearing that this question has now been answered.
Undertaking No. 58 and Under Advisement No. 26: When First Discovered Suffering Damage
Undertaking No. 58: Regarding the allegation of reputational damage, to provide date on which CLC first noticed it was suffering reputational damage and to provide the evidentiary basis for that date and insofar as there are documents to support that date to provide those documents.
Under Advisement No. 26: To advise when CLC realized it was suffering monetary damage (as a result of the conspiracy between Davey and the City of London) and the evidentiary basis of that date.
[78] London submits that these questions have not been answered. CLC should provide more specificity as to when it first learned it was suffering damage so that London can better understand the scope of the claim.
[79] I disagree. CLC has answered these questions. While it did not provide a specific date on which it first noticed it was suffering damage, it did provide the general time frame (i.e., Phase 2 of the Cavendish project). It further noted that the specific dates are within the knowledge of London.
Undertaking No. 65: Work Outside of London
Undertaking No. 65: To particularize that allegation by providing a breakdown of the work that CLC has done outside of London for the past 10 years, any expenses associated with that work including dates and supporting documents with any receipts from mileage that it intends to rely on in support of this allegation (referring to Tab 39 of the Amended Reply).
[80] CLC advised that it did not provide this undertaking. Rather, it advised that it cannot commit to providing this information as it would go back ten years, and it does not know what is available. It did, however, note that if it does a profile of damages, this information would likely be included.
[81] I find that the information requested is relevant to this proceeding, including to CLC's damages. I order that CLC shall answer Undertaking No. 65 within 30 days. If CLC cannot provide dates, or no supporting documents exist, CLC shall so advise.
Under Advisement No. 2: ISA Arborists
Under Advisement No. 2: To advise of the names of any other ISA arborists that work for CLC, if relevant.
[82] London submits that the employee's qualifications are relevant to CLC's ability to meet the requirements of the tenders/contracts. It seeks a complete list of names and their qualifications.
[83] CLC submits that this question is not relevant and refuses to answer it.
[84] I find that the qualifications of CLC's staff members are relevant to CLC's ability to meet the requirements of the contracts and tenders. Accordingly, I order that CLC shall answer the question for all periods in which CLC claims it has suffered loss.
Under Advisement No. 3: Quotes for Tree Removals
Under Advisement No. 3: To provide (from 2014 to present) copies of all quotes given by the Plaintiff in relations to tree removals, City tree removals, to the various contractors that the Plaintiff did business with.
[85] CLC submits that this question has been answered. CLC provided quotes to contractors since 2018 at Undertaking No. 32. London has not provided the relevance of the records from 2014 to 2018.
[86] London submits that the answer to this question depends on the response from CLC as to the time period for its claim. Counsel for CLC's letter dated May 30, 2025 indicates that the time frame extends as far back as 2013, but there continues to be some confusion as to the actual time frame.
[87] I order that CLC shall confirm the time frame for its claim within 30 days of receiving the remaining answers to the Defendants' undertakings and refusals noted above. CLC shall answer Under Advisement No. 3 for the time frame so confirmed.
Under Advisement No. 15: Culture of Exclusion in 1996
Under Advisement No. 15: To make inquiries of the previous president and ask him if in 1996 he was aware of the culture of exclusion and preferential treatment.
[88] London seeks to determine when the allegations of preferential treatment first arose, or at least when CLC first became aware of them. CLC advised that it made inquiries of the former president who advised that he would have been alive to the culture of exclusion and preferential treatment in or about 2006.
[89] I find that CLC has answered this question, but the wording of its answer is somewhat confusing. Does the answer mean that the former president was not aware of such claims prior to 2006?
[90] I order that within 30 days CLC shall confirm whether or not the prior president was aware of any such claims between 1996 and 2006.
Under Advisement No. 16: 24-Hour Call Availability
Under Advisement No. 16: Mr. McCallum says that CLC met the qualification that he would be able to answer calls 24 hours a day. If he said he met that qualification, to identify the documentary support to establish that.
[91] CLC answered this question in the affirmative but did not provide documentary support, nor has it confirmed that no such support exists.
[92] I order that CLC shall provide documentary support for its answer, or alternatively confirm that no documentation exists, within 30 days.
Under Advisement No. 19: Section 2.2 Requirements in 2019
Under Advisement No. 19: To advise if there are any items in Section 2.2 that CLC could not satisfy in 2019 (referencing the Request for Proposal at Volume I, Tab 59 of the City's AOD).
[93] CLC answered this question, but again no documentary support was provided, and it did not confirm that no such support exists.
[94] This question did not, however, require the provision of documentary support. This question has therefore been answered.
Under Advisement No. 27: Contracts Forced Upon CLC
Under Advisement No. 27: To particularize the allegation at paragraph 38 (of the Amended Reply) regarding the contracts that the Plaintiff has been forced to take and to provide a list of the contracts that the Plaintiff says it was forced to take with dates and supporting documentation, including documents supporting the expenses that Mr. McCallum has just mentioned.
[95] London submits that CLC should be required to particularize the other work it claims it was forced to take on as a result of the alleged preferential treatment. CLC has not provided any substance to this allegation.
[96] CLC submits that this undertaking is answered as set out at Schedule A.
[97] I find CLC's answer to be far too vague. I order that CLC shall within 30 days provide full particulars of any work it claims it was required to take on as noted at para 38 of the Amended Reply, with dates and supporting documentation, including support for the expenses claimed. If no such dates or supporting documentation exist, CLC shall similarly advise of same.
Under Advisement No. 28: Staff Lost
Under Advisement No. 28: To provide a list of the staff allegedly lost, as alleged in paragraph 38, including, if you have it, supporting documents to establish the reason for their departure.
[98] London submits that this question remains outstanding while CLC submits that it was answered as set out at Schedule A.
[99] I find that this question has been partially answered. CLC provided the names of the staff members it claims to have lost but has not provided supporting documents or confirmed that no such documents exist, other than to indicate it has not yet located any such documents.
[100] I order that CLC shall provide supporting documents, or alternatively confirm that no such documents exist, within 30 days.
Costs
[101] Given that success was mixed on the motion and my comments regarding the parties better working together to answer the undertakings, I am presumptively of the view that no costs ought to be awarded at this time. Instead, costs should be determined in the cause.
[102] In the event the parties are of a different view or there offers to settle I should consider, the parties may each provide a Costs Outline, along with written cost submissions, not to exceed five-pages, double spaced, 12 pt font, within 30 days of the release of this decision.
Jennifer E. Bezaire
Justice
Released: September 25, 2025