No indication plaintiff was foregoing discovery process

ACTION

No indication plaintiff was foregoing discovery process

Plaintiff asserted lien under Construction Lien Act (Ont.), for $18,353. Defendant counterclaimed for $298,299. Plaintiff filed trial record. Plaintiff’s motion for leave to examine defendant for discovery despite having filed trial record; amendment of pre-trial timetable; and site inspection. Plaintiff’s position trial record filed only to prevent expiry of lien under s. 37, and without abandoning right to examine for discovery. Defendant objected discoveries and site inspection unnecessary. Defendant’s cross-motion for order representative of plaintiff attend examination for discovery; and order plaintiff pay costs of copying defendant’s productions. Examinations permitted. No indication plaintiff was foregoing discovery process. Trial record filed only to maintain timely lien claim. Rule 48.04 of Rules of Civil Procedure (Ont.), not requiring denial of leave to initiate discoveries. Site inspection permitted. Not established that inspection unnecessary, unhelpful or prejudicial. Not clear that photographs provided by defendant were properly characterized as being “before” and “after” remedial work. No order for costs of production appropriate until documents firmly settled or ascertained. Timetable established.
Eurodale Developments Inc. v. Rimgate Holdings Ltd. (Oct. 29, 2012, Ont. S.C.J., MacKenzie J., File No. CV-10-1977-00) 223 A.C.W.S. (3d) 333.