Cairnview Mechanical Ltd. Plaintiff And: DMW Development Corp. v. Denise Marie Wilson,, 2013 BCSC 1399

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cairnview Mechanical Ltd. v. DMW Development Corp., 2013 BCSC 1399 Date: 20130802 Docket: 12-3843 Registry: Victoria Between: Cairnview Mechanical Ltd. Plaintiff And: DMW Development Corp. and Denise Marie Wilson, also known as Denise Marie Bayles Defendants Before: Master Bouck Reasons for Judgment Counsel for the Plaintiff: M.R. Scherr Counsel for the Defendants: J.A. Plonka Place and Date of Trial/Hearing: Victoria, B.C. June 13, 2013 Place and Date of Judgment: Victoria, B.C.

August 2, 2013 Introduction [ 1 ] This action concerns the plaintiff’s involvement in the construction of the 98-unit “Utopia” condominium project. [ 2 ] At issue on this application is whether the plaintiff is entitled to particulars from the defendants with respect to the latter’s pleadings. The defendants say that no such particulars are necessary or, in the alternative and at best, the plaintiff’s application is premature. [ 3 ] In its notice of application, the plaintiff also sought an order that the amended counterclaim be struck if the particulars are not provided.

This second aspect of the application was not argued. Facts [ 4 ] At the heart of this dispute is a contract entered into between the plaintiff and defendant DMW Development Corp. (“DMW”) on May 25, 2011. The contract is in the standard form CCDC 17 2010 and includes provisions regarding such things as delays, use of temporary workers, site clean-up, terms of payment and dispute resolution. The architectural drawings are incorporated into the terms of the contract. [ 5 ] DMW is the owner of the lands on which the project is located.

Denise Wilson, also known as Denise Bayles, is the “guiding mind” of DMW. [ 6 ] The plaintiff contracted with DMW to perform all heating, ventilating and air conditioning (“HVAC”) work for the project. [ 7 ] According to the plaintiff, all of the work was performed satisfactorily but DMW has refused to pay for the work and materials. The plaintiff filed two separate liens and commenced this action.

The total amount claimed in the liens is $270,535.84. [ 8 ] The defendants have filed a response and counterclaim (both now amended) alleging that the plaintiff breached the contract and is not entitled to any of the monies claimed. The amended response and counterclaim describe a variety of acts and omissions which are said to represent these breaches. [ 9 ] A demand for particulars was sent to the defendants’ counsel in May 2013.

The defendants responded in writing declining to provide those particulars. [ 10 ] In support of this application, the plaintiff’s operations manager deposes that the project is complete and at no time were any

concerns raised by the defendants with respect to the work performed. The affidavit addresses the plaintiff’s lack of understanding of the defendants’ pleas and the need for particulars. The deponent also states that he does not know “what experts to refer counsel to” given this lack of understanding. [ 11 ] The discovery process has yet to begin.

Plaintiff’s counsel says that he requires the particulars in order to prepare for any examination for discovery as well as address document disclosure. [ 12 ] In the course of submissions, counsel advised that this dispute might be proceeding to alternative dispute resolution in the very near future. Counsel were asked to inform Court Scheduling if a resolution was achieved obviating the need for a ruling on this application. In the absence of such advice, I will assume that the ruling is still required. [ 13 ] The matter is not set for trial.

The Law [ 14 ] The parties agree on the law which governs an application for particulars. [ 15 ] That law is succinctly stated by Punnett J. in Samaroo v. Canada (Revenue Agency), 2013 BCSC 482 : [3] The function of particulars was summarized in Cansulex Ltd. v. Perry , [1982] B.C.J.

No. 369 (C.A.) at para. 15 as follows: 15 … (1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved; (2) to prevent the other side from being taken by surprise at the trial; (3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial; (4) to limit the generality of the pleadings; (5) to limit and decide the issues to be tried, and as to which discovery is required, and (6) to tie the hands of the party so that he cannot without leave go into any matters not included. [4] After a review of relevant authorities, the court also stated: 11 Those decisions delineate the difference between what is properly the subject matter of a Demand for Particulars and what is more properly the subject matter of a Demand for Discovery or material that should be obtained on an Examination for Discovery.

At the heart of the distinction between the two lies the question whether the material demanded is intended to, and does, delineate the issues between the parties, or whether it requests material relating to the way in which the issues will be proved. [ 16 ] The parties rely on Cansulex and various other authorities, with the plaintiff placing special reliance on Hayes Heli-Log Services v. Acro Aerospace Inc. et al, 2006 BCSC 80 . As the name might suggest, this case involved the crash of a helicopter allegedly caused by an engine shutdown.

In its defence, the manufacturer suggested that the plaintiff was at fault for the crash.

The statement of defence alleged that the plaintiff had operated the helicopter in a “reckless and dangerous” manner and “outside of prescribed flight limits” at certain times. [ 17 ] Dillon J. ordered the defendant to provide particulars “with a date range if possible” of these impugned flying operations as such provision would “serve numerous purposes, including provision of material facts related to Sikorsky’s negligence claim against the plaintiff, narrowing issues for trial, enabling the plaintiff to prepare its case, and forcing the defendant to plead the exact nature of its claim”: para. 8. [ 18 ] The defendant here emphasizes the principle that particulars should be ordered “only when necessary” and not simply because the provision would be “helpful” to the other party.

And further, the court must ensure that an order for particulars is not used as a tool of discovery. The Particulars [ 19 ] The plaintiff attaches its request for particulars as

Schedule “A” to the notice of application. The request is rather lengthy and sets out eighteen separate categories and sub-categories of particulars. Many of the sub-categories mirror each other in terms of language. [ 20 ] By way of examples, the particulars requested include: 10. The allegation that the plaintiff has failed to complete all required HVAC and plumbing work found in paragraph 4(

i) of the Amended Response to Civil Claim and incorporated in the Amended Counterclaim by paragraph 2 thereof: a. What work is it alleged that the plaintiff failed to complete? b. What is the contract specification the plaintiff is alleged to have breached? c. What Contract Document (as defined in

Article A-3) is the alleged work specified in? Please provide both the name of the document and the page/paragraph number;

d. Was Notice in Writing of the alleged failure delivered to the Plaintiff? e. If the answer to (

d) above is yes: i. When was the said notice delivered? ii. How was it delivered? iii. To whom was it delivered? f. Has the alleged incomplete work now been completed? g. If the answer to (

f) above is yes: i. When was it completed? ii. By whom was it completed? iii. What cost was incurred by the defendant in completed the alleged incomplete work? 11. The allegation that the Defects (as defined in the Amended Counterclaim) caused “further damage" to the improvement found in paragraph 6 of the Amended Response to Civil Claim and incorporated in the Amended Counterclaim by paragraph 2 thereof: a. In what units is it alleged the further damage occurred in? b. When did the alleged the further damage occur? c. How is it alleged that the damage was caused? d. Was Notice in Writing of the alleged damage delivered to the Plaintiff? e. If the answer to (

d) above is yes: i. when was the said notice delivered? ii. how was it delivered? iii. to whom was it delivered? f. Has the alleged damage been corrected? g. If the answer to (

f) above is yes: i. When was it corrected? ii. By whom was it corrected? iii. What cost was incurred by the defendant in correcting the alleged defect? 15. The allegation that the plaintiff failed to maintain a tidy work found in paragraph 10 of the Amended Response to Civil Claim and incorporated in the Amended Counterclaim by paragraph 2 thereof: a. What is the contract specification the plaintiff is alleged to have breached? Please provide both the name of the contract document and the page/paragraph number; b. When is the breach alleged to have occurred? c. Was Notice in Writing of the alleged failure delivered to the Plaintiff? d. If the answer to (

c) above is yes: i. When was the said notice delivered? ii. How was it delivered? iii. To whom was it delivered? e. What damages are claimed by the defendant relating to the alleged breach? f. Who tidied the plaintiffs work site? g. When was the work site tidied? 18. The allegation that the amounts claimed in the liens filed were not properly chargeable or owing by the defendants found in paragraph 3 of the Amended Counterclaim:

a. What amount is it alleged was not properly chargeable or owing? b. What Invoice is the said amount noted on? c. Was Notice in Writing of dispute of the alleged amount not properly chargeable or owing by the defendants delivered to the Plaintiff? d. If the answer to (

c) above is yes: i. when was the said notice delivered? ii. how was it delivered? iii. to whom was it delivered? e. When is it alleged the amount not properly chargeable or owing by the defendants was claimed by the plaintiff? Discussion [ 21 ] Both counsel are to be commended for providing the court with helpful written materials. The defendants counsel should receive special recognition for the content of his clients’ response as it reflects the spirit and intention of Rule 8-1, and follows the practice encouraged in Zecher v.

Josh , 2011 BCSC 311 . [ 22 ] As a result of these written and oral submissions, the parties’ positions have been fully argued and presented on the record. Other than what has been mentioned above, I see no purpose in repeating the full content of those submissions. [ 23 ] Upon reflection, I find that the plaintiff’s requests seek from the defendants both clarification on the material facts in issue in the case and the evidentiary detail or substance which the defendants will rely on to prove those material facts. Particulars will not be ordered with respect to the latter category.

The defendants are quite right that particulars are not intended to be another form of discovery: Quantum Helicopters v. Honeywell International Inc., 2011 BCSC 1352 . [ 24 ] Furthermore, examinations for discovery have yet to occur. Much of the information requested by the plaintiff is more properly obtained at those examinations. Again, by way of example, the timing and delivery of notice to the plaintiff of any defective work is not required by the plaintiff to know the case to be met.

That kind of information is within the category of “evidence” which the defendants might rely on to either substantiate the defence or prove the counterclaim or both. As well, the amount of the defendants’ damage claim need not be particularized. [ 25 ] However, given the context of this claim, some of the requested information is needed to allow the plaintiff (and the court, for that matter) to understand the case that must be met.

The “work” that the plaintiff failed to perform has been identified in the response, but not attributable to any particular location or unit. [ 26 ] This is not a case of the plaintiff working on one bathroom in a single family dwelling (without intending in any way to trivialize such work).

Rather, the work performed by the plaintiff included HVAC work in 98 separate units. [ 27 ] At the very least, particulars are necessary to allow the plaintiff to narrow down, if not specifically identify, the alleged faulty work described by the defendants. [ 28 ] In addition, as the defendants have pled general terms of the contract, it is necessary to provide limited particulars of the specific provisions allegedly breached by the plaintiff. [ 29 ] Such particulars will also limit the discovery required and tie the hands of the defendant. [ 30 ] With those comments in mind, I order that the defendants provide the plaintiff with the following further and better particulars as requested in

Schedule “A”: 1. a., b., 2. a., 3. a., 4. a., 5. a., 6. a., 7. a., c., 8. a., 9. a., 10. a., b., 11. a., c., 12. a., 16. a. [ 31 ] I further order that such particulars be provided by no later than September 15, 2013, unless otherwise agreed between the parties [ 32 ] Costs of the application will be in the cause. “C.P. Bouck” Master C.P. Bouck