It’s not too often that construction deficiencies result in criminal charges being laid but that seems to be what is happening with respect to a gas station North of Guelph, Ontario, CTV News Kitchener reports. Typically, this sort of matter will be pursued and resolved through civil litigation without criminal proceedings even coming onto the radar. Unfortunately, the report (and others I found online) don’t give enough information to cast some light on the reason that, in this case, the conduct of the vendor was considered by police to give rise to potential criminal responsibility.
There are two ways to introduce evidence given by a witness examined for discovery at trial:
- The party who carried out the examination can use the prior evidence to impeach the witness’ evidence at trial where it differs from the evience given at the examination; or
- The party who carried out the examination can “read-in” portions of the transcript produced at the examination and those “read-ins” become part of the evidentiary record at trial.
The recent case of Urbacon Building Groups Corp. v. Guelph (City), 2013 ONSC 5773 (CanLII) – which by the way is producing lots of interesting caselaw re construction liens in Ontario – addressed whether an owner rely upon read-in evidence from transcripts of subcontractors’ Examinations for Discovery against the general contractor. The City of Guelph took the position that it could read-in portions of the transcripts of the Examinations for Discovery of Urbacon’s (the GC) subcontractors against Urbacon.
Much to my nerdy delight, Justice MacKenzie cited an earlier Ontario Decision and a B.C. Decision and ruled that (I paraphrase) discovery evidence can only be read in against the party who gave it. One can easily imagine the mischief that could result from one party relying on the evidence given by X against Y when Y may not have had a chance to challenge or counter X’s evidence and I am glad that the door on this risk has been closed just a little further and, in particular, in the context of a multi-party construction lien action.
Kitchener-Waterloo’s main journalistic rag, The Record, reports that the Ontario Government will apply to the Court to become an intervenor (an intervenor is a party added to a court proceeding as a result of an interest in the outcome) in the Region of Waterloo’s appeal of the Ontario Municipal Board’s decision to open up more than 1,000 hectares of regional land to new greenfield development (compared to the 85 hectares set by the Region). As reported, if the Province’s motion is successful, the Region will have a powerful ally in its appeal.
The significance of this appeal in shaping the development of the Region of Waterloo for future generations is obvious and many, myself included, will be watching with great interest as it unfolds.
Construction deficiency claims and title insurance being two of my primary areas of practice and both being near and dear to my heart, I read Mike Holmes’ article “A flood of misinformation: Title insurance is not a home warranty” in the National Post with some interest.
I don’t agree with everything that Holmes says in the article but he got the title right anyway. Title insurance is a specialized insurance product and, as a very general statement, protects purchasers of real property from a long list of “title” or “ownership” related problems or “risks”. It is not, and doesn’t pretend to be, a warranty of good design and/or construction. The title of the article seems to suggest that Holmes agrees with this proposition. So far, so good.
Where Holmes really loses me, though, is when, in discussing hypothetical homeowners who discover major construction deficiencies, he writes, “Who’s at fault? Is it the homeowner who got the renovation? Is it the contractor that was hired? Is it the title insurance company, the building inspector or the government? As far as I’m concerned, it’s all of the above.” How can the title insurer be at fault?
A policy of insurance (be it title insurance or some other kind of insurance coverage) covers what it covers and doesn’t cover what it doesn’t cover. For Holmes to suggest, as he does, that the title insurer is at fault in the scenario he outlined is a bit like saying that when your house gets broken into and your auto insurer won’t pay for your stolen sofa, your auto insurer is partly at fault for your loss.
In any case – I thought the article was worth mentioning as Homes has brought some good media exposure to title insurance and cast at least a little bit of light on a common misunderstanding that I see all too often in my practice.