Brampton accused of stalling $28.5 million lawsuit

A developer suing the City of Brampton for $28.5 million alleges the city is delaying the case, asking the court to force the production of documents

Thestar.com
Nov. 10, 2015
By San Grewal

With no trial date in sight four years after a $28.5-million lawsuit was launched against the City of Brampton over a $500-million development deal, the plaintiff has filed a motion in Superior Court asking it to begin the trial and force the city to respond to questions about the controversial project.

The motion also states that the city has continued to delay the release of requested documents, despite orders by the court to release them. Trials in civil cases usually do not begin until all relevant documents have been disclosed by both parties and pre-trial questions have been answered.

The motion states that the plaintiff, Inzola Group, provided all its documents requested by the city more than three and a half years ago. It also states that as of September the city had yet to answer 371 outstanding questions about the deal.

The motion by Inzola’s owner John Cutruzzola alleges, regarding outstanding questions and the delayed release of documents during the pre-trial process, even after previous orders by the court, “The city has repeatedly missed deadlines - including deadlines it set for itself” and has “substantially delayed” the pre-trial process. It also states the lawsuit is, “in essence, about public accountability, the transparency of a municipal procurement process, and the use of taxpayer funds.”

The motion quotes a previous decision by the court in the case which ordered the city to answer outstanding questions and provide any relevant documents: “The requested 90 days suggests that the City fails to appreciate that time is of the essence.” That decision also rejected the city’s reasons for the delays, describing them as “far from convincing.”

In its response to the motion, filed to the court, the City of Brampton denies the allegations, stating: “This is not a straight-forward, simple lawsuit. It is simply inappropriate and misleading ... to suggest that the City has delayed the progress of the action.”

The city explains in its response that it has not missed deadlines, that a large number of documents have been involved, that third parties first had to consent before information could be provided and that many of the plaintiff’s questions have been answered.

A hearing has been set for Friday in Brampton’s Ontario Superior Court to deal with the motion.

In the lawsuit’s 2011 statement of claim, Cutruzzola alleges he was unfairly disqualified from bidding on the massive downtown re-development because city staff and former mayor Susan Fennell were biased in favour of the eventual bid winner, Dominus Construction.

The city denies all the lawsuit’s allegations, which have not been proven in court. Dominus has not been accused of any wrongdoing and has said it followed all the rules in the bidding process.

The Law Society of Upper Canada regulates the legal profession in Ontario and establishes requirements under its rules for professional conduct. It could not comment on a specific case, but a spokesperson outlined which rules might apply to the alleged delays in the Brampton lawsuit.

The spokesperson directed the Star toward LSUC rules stating, in part, that lawyers must explain to clients “the necessity of making full disclosure of all documents relating to any matter in issue and the duty to answer to the best of their knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal.”

One of the main issues highlighted in the Inzola Group’s motion is a new contract between the city and Dominus in 2014, which replaced the original 2011 contract signed.

The city had been asked by Inzola in the spring to provide the new contract prior to the June pre-trial testimony of senior staffer Julian Patteson during his most recent “discovery,” a process that allows a party to ask its opponent in the case questions based on evidence, such as documents that have been released.

But Patteson and the city’s lawyers arrived at the discovery on June 29 without having produced the key document, the new contract for the entire deal. According to transcripts from the discovery Inzola’s lawyer asked, “Is there some reason why this agreement hasn’t been produced? Is there some objection to producing it?”

The city’s lawyer, Elizabeth Bowker, responded, “I actually don’t know.” After Inzola’s lawyers made it clear that the new agreement was crucial to their discovery of Patteson, Bowker said she would try to bring it to the next day’s scheduled discovery.

On June 30, the final day scheduled for the discovery, Inzola’s lawyer asked Bowker for the agreement. She said, “We could not get one.”

She later said that the agreement was, “intended to be produced” and then said, “I erroneously thought that we had produced these documents already ... but clearly I was wrong.”

The city eventually produced the agreement three weeks after the discovery.