SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
Sue DeGrandis and Barry DeGrandis v. 1123951 Ontario Limited c/o Libero
Building Services
BEFORE:
MASTER R. A. MUIR
COUNSEL: Paul Adam for the plaintiffs
Robert J. Kennaley for defendant
REASONS FOR DECISION
[1]
There are two motions before the court for similar relief. The plaintiffs and the
defendant seek orders relating to the attendance of a non-party at discovery and for the service of
further and better affidavits of documents.
[2]
This is a home renovation construction dispute. The plaintiffs are the homeowners. The
defendant was the plaintiffs’ trade contractor for certain underpinning and excavation services.
The amounts in issue are relatively modest, at least in terms of construction litigation. The
plaintiffs claim $135,000.00 in damages. The defendant has counterclaimed for approximately
$44,000.00 in damages.
[3]
The plaintiffs claim the defendant has overbilled and failed to provide the plaintiffs
with credits for amounts directly paid by the plaintiffs. The plaintiffs also claim the defendant’s
alleged incompetence caused them to incur additional out of pocket costs. The plaintiffs also
claim damages for delay, wrongful termination of the contract and costs to remedy and complete
the defendant’s work.
[4]
The defendant seeks damages for the balance owing on its contract, additional work
outside of the original scope of work and damages arising from the extended duration of the
contract including lost productivity and lost profits.
[5]
Examinations for discovery were originally scheduled for January 2016. They did not
proceed due to a dispute over the attendance of a non-party. The parties then brought these
motions that were eventually argued before me on June 28, 2016.
2016 ONSC 4335 (CanLII)
CITATION: DeGRANDIS v. 1123951 ONTARIO LIMITED, 2016 ONSC 4335
COURT FILE NO.: CV-14-501673
MOTION HEARD: JUNE 28, 2016
[6]
The issue with respect to the attendance of the non-party was argued first. The
defendant wishes to have a non-party present at discovery in order to assist counsel. The nonparty in question is Sandra Clementi, the spouse of the principal of the defendant corporation.
She is apparently not an employee, officer or director of the defendant. Ms. Clementi has
assumed the role of unpaid law clerk for this litigation in order to keep costs down. It also
appears that Ms. Clementi provides unpaid labour to the defendant from time to time apart from
her role in this litigation.
[7]
First, the case law relied upon by both sides establishes that the court has the discretion
to permit the attendance of a non-party at discovery in order to assist counsel, depending on the
circumstances of the particular case. See Poulton v. A & P Properties Limited, 2005 CanLII 4105
(ON SC – Master) at paragraphs 11-19.
[8]
I agree with the plaintiffs that the attendance of the non-party must not disrupt the
examination process and the non-party’s role must be limited to assisting counsel. In my view,
Ms. Clementi’s attendance is appropriate in the circumstances of this case. A significant number
of documents will need to be organized and reviewed. The amounts of the claims are relatively
modest but there are many discreet issues to cover. I see nothing improper about her attendance
so long as her role is limited to involvement similar in nature to a law clerk or articling student
assisting counsel. It appears to me that this is a sensible way to reduce expenses and the overall
cost of litigation.
[9]
However, there must be limits. Ms. Clementi is not to take on the role of witness or
assist the defendant’s representative in answering questions. A witness on discovery has a duty
to inform himself of the matters in issue and the defendant’s witness should obviously do so. I
also note that the defendant has undertaken to the court not to call Ms. Clementi as a witness at
trial. Of course, I agree that advance notice of Ms. Clementi’s attendance should have been
provided to the plaintiffs. However, the lack of notice is a matter for costs and in my view does
not affect the defendant’s entitlement to have Ms. Clementi present at discovery.
[10]
Ms. Clementi shall be entitled to attend the examinations for discovery in accordance
with the terms of these reasons for decision.
[11]
The production motions were argued next. In determining the issues relating to the
scope of production, I have considered the relevance test set out in Rule 30.02 of the Rules of
Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). It is important to remember that relevance
is determined by the pleadings. I am especially mindful of the proportionality requirements of
Rules 1.04(1.1) and 29.2.
[12]
It is necessary to make a few observations about the role of proportionality in the
circumstances of this action. It is certainly true that the total amount claimed by the plaintiffs
exceeds the monetary threshold under the Rule 76 simplified procedure. This action has properly
been brought as an ordinary proceeding. However, it is important to note that no one head of
damages exceeds $100,000.00. In fact, all of the discreet claims are significantly less than
$100,000.00 on an individual basis and some are within the monetary jurisdiction of the small
2016 ONSC 4335 (CanLII)
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[13]
The same can be said for the defendant’s counterclaim. The balance owing on its
contract is alleged to be $6,000.00. The contract extras claimed amount to $13,000.00. Its
productivity loss claim is estimated to be $22,000.00.
[14]
I understand that these are significant amounts of money for individuals and small
businesses. However, they are not significant amounts when it comes to litigation in the Superior
Court of Justice, especially under ordinary procedure. The costs of pursuing these claims may
very well exceed the amounts in issue. The Rules require this court to consider this factor when
making discovery and other procedural orders.
[15]
I also agree with the submissions of counsel for the defendant with respect to a
litigation “culture shift”. The Supreme Court of Canada has made it abundantly clear that there
needs to be a culture shift in how the parties, the bar and the courts approach the resolution of
civil disputes. This approach is reflected in Justice Karakatsanis’ observations in Hryniak v.
Mauldin, [2014] 1 SCR 87 beginning at paragraph 23:
23
This appeal concerns the values and choices underlying our civil justice system,
and the ability of ordinary Canadians to access that justice. Our civil justice system is
premised upon the value that the process of adjudication must be fair and just. This
cannot be compromised.
24
However, undue process and protracted trials, with unnecessary expense and delay,
can prevent the fair and just resolution of disputes. The full trial has become largely
illusory because, except where government funding is available, ordinary Canadians
cannot afford to access the adjudication of civil disputes. The cost and delay associated
with the traditional process means that, as counsel for the intervener the Advocates'
Society (in Bruno Appliance) stated at the hearing of this appeal, the trial process denies
ordinary people the opportunity to have adjudication. And while going to trial has long
been seen as a last resort, other dispute resolution mechanisms such as mediation and
settlement are more likely to produce fair and just results when adjudication remains a
realistic alternative.
25
Prompt judicial resolution of legal disputes allows individuals to get on with their
lives. But, when court costs and delays become too great, people look for alternatives or
simply give up on justice. Sometimes, they choose to represent themselves, often creating
further problems due to their lack of familiarity with the law.
26
In some circles, private arbitration is increasingly seen as an alternative to a slow
judicial process. But private arbitration is not the solution since, without an accessible
public forum for the adjudication of disputes, the rule of law is threatened and the
development of the common law undermined.
2016 ONSC 4335 (CanLII)
claims court. By way of example, the plaintiffs seek payment of $45,000.00 for incomplete
work, $4,000.00 for architectural fees unnecessarily incurred, $3,000.00 for storage and
$75,000.00 for costs to complete. Within each of the major heads of damages are various discreet
sub-heads which rarely amount to more than a few thousand dollars.
27
There is growing support for alternative adjudication of disputes and a developing
consensus that the traditional balance struck by extensive pre-trial processes and the
conventional trial no longer reflects the modern reality and needs to be re-adjusted. A
proper balance requires simplified and proportionate procedures for adjudication, and
impacts the role of counsel and judges. This balance must recognize that a process can be
fair and just, without the expense and delay of a trial, and that alternative models of
adjudication are no less legitimate than the conventional trial.
28
This requires a shift in culture. The principal goal remains the same: a fair process
that results in a just adjudication of disputes. A fair and just process must permit a judge
to find the facts necessary to resolve the dispute and to apply the relevant legal principles
to the facts as found. However, that process is illusory unless it is also accessible proportionate, timely and affordable. The proportionality principle means that the best
forum for resolving a dispute is not always that with the most painstaking procedure.
29
There is, of course, always some tension between accessibility and the truth-seeking
function but, much as one would not expect a jury trial over a contested parking ticket,
the procedures used to adjudicate civil disputes must fit the nature of the claim. If the
process is disproportionate to the nature of the dispute and the interests involved, then it
will not achieve a fair and just result.
[Footnotes omitted]
[16]
The culture shift referred to by Justice Karakatsanis goes beyond summary judgment
motions. It infuses all aspects of civil procedure including, I might note, the allocation of the
court’s finite judicial resources. See Farmers Oil & Gas Inc. v. Ontario (Ministry of Natural
Resources), 2015 ONSC 223 at paragraphs 4-8.
[17]
These principles are certainly applicable to the issue involving the attendance of the
non-party at discovery. As indicated above, I view that request as a cost-saver. However, it is my
view that these principles are even more compelling with respect to the parties’ competing
production motions.
[18]
I have reviewed and carefully considered the various production requests made in both
motions. In my view, when compared to the pleadings, the vast majority of the documents
requested are indeed “relevant” to matters in issue in this proceeding. The issues raised by the
pleadings are very broad. They cover almost every aspect of the project. The claims made
involve issues relating to scope of work, incomplete work, extras, billing, accounting, delay,
completion costs, termination of the contract, the competency of the contractor, productivity loss,
lost profits and so on and so on. Counsel for the defendant objected to the plaintiffs’ production
request on the basis that it amounted to a request for the defendant’s entire file in relation to this
project. That may be so, but I find it difficult to see how the plaintiffs’ requests are beyond the
scope of relevance given the broad expanse of the pleadings.
[19]
In the circumstances of this action, I am simply not prepared to make an order for the
production of what would appear to be thousands of additional documents that would take
2016 ONSC 4335 (CanLII)
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months to assemble and many more months to review and assess. Many additional thousands of
dollars would be spent on legal fees. This action was started more than two years ago and has not
progressed past the pleadings stage. The parties were prepared to conduct discoveries in January
2016 on the basis of the production to date. These motions seem to have been generated by a
dispute over the attendance of a non-party at discovery rather than any actual serious concern
about the scope of production. In my view, a middle course must be found. Such an approach is
consistent with the proportionality requirements of the Rules and the direction of the Supreme
Court of Canada in Hryniak. It is also consistent with the approach commonly adopted by
reference masters in Toronto hearing similar home renovation matters pursuant to the provisions
of the Construction Lien Act, RSO 1990, c. C30.
[20]
The parties shall adopt the following approach with respect to further production and
discovery. Each side shall review their files once again bearing in mind the production requests
made on these motions. Each side shall produce what they consider to be any additional key
documents they intend to rely on at trial. This additional production shall be made by July 29,
2016. Oral examinations for discovery shall be completed by September 2, 2016. The parties’
production motions are otherwise dismissed.
[21]
This order is made without prejudice to either side renewing their requests for
additional production after oral discovery. It is my hope, however, that by following this path,
the parties will narrow the issues between them and be better able to focus on the real and
significant and cost effective areas of dispute.
[22]
Counsel shall confer and attempt to resolve the issue of the costs of this motion and the
costs thrown away as a result of the cancelled discoveries. If the parties are unable to agree, they
shall provide the court with brief written submissions by no later than July 21, 2016.
__________________________
Master R.A. Muir
DATE: June 29, 2016
2016 ONSC 4335 (CanLII)
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