



COURT OF APPEAL FOR ONTARIO

CITATION: Southside
    Construction (London) Limited v. Windsor (City), 2019 ONCA 787


DATE: 20191002

DOCKET: C66141

Juriansz, Benotto and Miller
    JJ.A.

BETWEEN

Southside Construction (London)
    Limited

Plaintiff/Defendant by counterclaim

(Respondent)

and

The Corporation of the City of
    Windsor

Defendant/Plaintiff by counterclaim

and

Montgomery
    Sisam Architects Inc., J.P. Thomson Associates Ltd.
,
    JMR Electric Ltd., Jemini Construction Ltd., Forest City Forming Ltd., Bravo
    Cement Contracting Inc., Artisan Masonry Inc., Prestressed Systems Inc., Plaza
    Ontario Marble & Tile Incorporated, Trend Millwork & Cabinets Inc., D
    & M Glass & Mirror Ltd., Flynn Canada Ltd., and Williams Food Equipment
    Company (1998) Limited and Robson Acoustics & Drywall (2002) Inc.

Third Parties to the
    counterclaim

(
Respondents
)

David B. Williams, for the appellant,
    Keith Bannon

James A. Leber and Eric Grigg, for the
    respondent, Southside Construction (London) Limited

P. John Brunner, for the respondents,
    Montgomery Sisam Architects Inc. and J.P. Thomson Associates Ltd.

Heard and released orally:
    September 23, 2019

On appeal from the order of Justice J.
    Paul R. Howard of the Superior Court of Justice, dated October 16, 2018.

REASONS FOR DECISION

[1]

This is an appeal by the non-party, Keith
    Bannon, from the order dated October 16, 2018 ordering him to attend to be
    examined as a witness in a motion pending before the Superior Court of Justice.
    Mr. Bannon is a lawyer of record for the City of Windsor in the proceedings. An
    appeal of the order by the City would not lie to this court. Counsel advised
    that the City had applied to the Divisional Court for leave to appeal and that
    leave was refused without reasons.

[2]

Counsel for Mr. Bannon did not indicate any
    reason why Mr. Bannon cannot attend the examination or any interest of his that
    would be compromised by his attendance. Rather, the submissions advanced were
    those one would expect to have been made on behalf of the City. In any event, assuming
    the issues raised are properly before us, we see no merit in the submissions
    advanced.

[3]

Counsel acknowledged that the case management
    judge recognized the order was extraordinary. In fact, the case management
    judge carefully considered all the factors set out by this court in
R. v.
    1504413 Ontario Limited
, 2008 ONCA
    253, 90 O.R. (3d) 122
. He proceeded on the basis that an order to
    examine opposing counsel should be avoided wherever possible, and that the
    party seeking such relief must meet an extremely high standard before such an
    order is made. The case management judge set out the history of the proceedings
    in great detail, including the refusal of an earlier application for an order
    that Mr. Bannon be examined, and the unsatisfactory results of the subsequent
    examination of another representative of the City. We are satisfied in the
    circumstances that the case management judge made no error that warrants
    appellate intervention.

[4]

The appeal is dismissed.

[5]

Costs are awarded against the appellant in the
    amount of $15,000, all-inclusive, for each respondent.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


