2013 ONSC 6165, 2013 ONSC 6165

CITATION : Urbacon Building Groups Corp. v. Guelph (City), 2013 ONSC 6165 COURT FILE NO.: 866/08 DATE: 20131001 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Urbacon Building Groups Corp. v. City of Guelph BEFORE: MacKenzie J. COUNSEL: Mr. M. Drudi, for the plaintiff/responding party Mr. D. Schmuck, for the defendant/moving party Ms. M. Ruberto, carriage counsel for lien claimants S U P P L E M E N T A R Y E N D O R S E M E N T to Endorsement re: Motion to read-in evidence given on discovery of (

a) lien claimant(

s) dated September 13, 2013 [ 1 ] This Endorsement supplements the reasons in the above Endorsement dated September 13, 2013 dismissing Guelph’s Rule 31.11 Motion (the September 13, 2013 Endorsement). [ 2 ] After issuing the September 13, 2013 Endorsement, Guelph’s counsel by letter dated September 13, 2103 informed the court that his Reply Submissions to the Responding Submissions of Urbacon and Ms. Ruberto, carriage counsel for the Lien Claimants, had not been mentioned in the September 13, 2013 Endorsement. Counsel notes that the Reply Submissions were sent by e-mail to my assistant, Ms.

Sopana Selvachandran on September 6, 2013 at 3:25 p.m. Regrettably, the e-mail account for Ms. Selvachandran was closed as of August 15, 2013, and the Reply Submissions never came to my attention. [ 3 ] Counsel has nonetheless included a copy of the Reply Submissions in his letter dated September 13, 2013 and I have reviewed and considered the same. [ 4 ] I have also received a letter from Ms.

Ruberto, carriage counsel for the Lien Claimants, dated September 20, 2013, wherein she comments on Guelph’s Reply Submissions. [ 5 ] I have received no further written submissions from any of the parties. [ 6 ] In the Reply Submissions, counsel says in paragraph 1 that Guelph “intends to use the excerpts from the examinations for discovery of the subtrades [Lien Claimants] in the Phase 1 liability paid against the subtrades…” [ 7 ] Further, in paragraph 7 of the Reply Submissions, Guelph states that “at the stage of the trial where [Guelph] is closing its evidence, Urbacon and the subtrades have the right of reply to call further evidence to rebut the discovery evidence being read in.” [ 8 ] Carriage counsel in her letter dated September 20, 2013 responding to Guelph’s Reply Submissions contends that Guelph has failed to provide any clarification whether Guelph intends to read in discovery evidence of a particular subtrade against that subtrade and failed to stipulate the basis for reading in discovery evidence which must be relevant to the issues before the Court in Phase 1 of the trial. [ 9 ] I agree with the above submissions by carriage counsel.

I note Guelph in paragraph 2 of the Reply Submissions states, in part, “…

Counsel for several of the subtrades attended the trial at various times and made submissions.” [ 10 ] This statement lacks specificity in terms of the relevant issues sought to be addressed in the Rule 31.11 motion. In like manner, the bald statement in paragraph 1 of the Reply Submissions, “..In law, Urbacon is responsible for delays caused by its subtrades” does not assist the Court in the context of the Rule 31.11 motion. [ 11 ] I turn now to the contention by Guelph in paragraph 4 of its Reply Submissions that

section 15 of the Ontario Evidence Act allows for discovery evidence of the subtrades to be read in as part of Guelph’s case against both the subtrades and Urbacon, on the basis that

section 15 does not have the phrase within Rule 31.11 “as part of the parties [sic] own case against the adverse party.” [ 12 ] This contention would have the effect of nullifying the plain meaning of the word “the” before the term “adverse party” in Rule 31.11: see paragraph 20 of Endorsement dated September 13, 2013. I decline to give effect to this argument. [ 13 ] The only remaining matter required to be addressed in the Reply Submissions is found in paragraph 10.

Guelph submits that “This court is free, under the doctrine of stare decisis , to accept or reject a decision of another Superior Court of Justice.” In essence, Guelph suggests “this Court” should reject the proposition in Cain v. Peterson , [2005] 24 CPC (6th) 298 , a decision of Mr. Justice Dambrot, SCJ; see paragraph 16, Endorsement dated September 13, 2013. [ 14 ] In all the circumstances, including the arguments set out in the Reply Submissions, I “accept” the decision in Cain v.

Peterson as the governing authority herein. [ 15 ] In the result, I affirm the dismissal of Guelph’s Rule 31.11 motion, for the reasons set out in the Endorsement of September 13, 2013, and as set out in this Supplementary Endorsement. Costs relating to the Supplementary Endorsement are reserved. ___________________________ MacKenzie J. DATE: October 1, 2013 CITATION : Urbacon Building Groups Corp. v. Guelph (City), 2013 ONSC 6165 COURT FILE NO.: 866/08 DATE: 20131001

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Urbacon v. City of Guelph BEFORE: MacKenzie J. COUNSEL: Mr. M. Drudi, for plaintiff/responding party Mr. D. Schmuck, for the defendant/moving party Ms. M. Ruberto, carriage counsel for lien claimants ENDORSEMENT MacKenzie J. DATE: October 1, 2013