Executive Summary: Key Legal and Evidentiary Issues

• Maple Reinders moved for an order compelling Micon to properly answer discovery undertakings and questions taken under advisement in two construction lien actions arising from the same warehouse project in Ajax, Ontario.
• Leave to bring the motion under section 67(2) of the former Construction Lien Act was contested, but the court held leave had already been granted explicitly through the discovery plan approved by Justice Healey's Order and implicitly through the leave to conduct examinations.
• Undertakings given on discovery must be honoured, the court affirmed, citing Fyffe (Fyffe Loggin) v. Ontrac Equipment Services Inc., regardless of whether the giving party later considers them burdensome, irrelevant, or overly broad.
• Seventeen questions remained in issue, set out in Schedules "C", "D", and "E" to Maple's factum, after Micon's Second Response of August 29, 2025 answered 25 of the questions sought.
• Micon repeatedly gave positions during submissions (that information does not exist or cannot be provided) that differed from the answers it had previously given, which the court found were not proper answers.
• The court ordered Micon to answer most of the outstanding questions within 45 days, while finding a small number of questions improper, including whether Micon would challenge document authenticity and questions requiring it to critique Maple's consultant reports.

Facts of the case

Micon Group Ltd. commenced two construction lien actions against Maple Reinders Constructors Ltd., both relating to the same project: the construction of a large warehouse facility in Ajax, Ontario, on which Maple was the general contractor. Micon's claim in the first action is for $4,043,918.30 and its claim in the second action is for $49,798.86. Maple defended both actions and counterclaimed in both. In 2018, Maple entered a subcontract with Micon under which Micon was to, among other things, prepare and supply electrical design drawings for the project, and in March 2019 the parties entered a change order for the electrical construction work at a price of $4,064,908.00. Micon alleges that the start of construction was delayed and that various other delays caused it to incur additional costs for extra labour, acceleration of its work, materials and services. In its responses to undertakings, Micon clarified that its claims are not delay claims but "acceleration" claims — claims based on increased costs incurred because delays shortened the period it had to complete its work — though the court noted that the characterisation was not necessary to decide the motion. By endorsement dated February 8, 2023, Justice Healey issued a consent order that the parties comply with the discovery plan. Micon's representative, Jay Barlow, was examined for discovery on April 4 and 5, 2024, giving several undertakings and taking various questions under advisement. Following a pre-trial conference on March 3, 2025, the parties were ordered to answer all undertakings and provide their positions on refused and under-advisement questions by May 15, 2025. Micon delivered its First Response on May 15, 2025, and, after being served with Maple's motion, a Second Response on August 29, 2025 answering 25 of the questions sought and producing several additional documents. Seventeen questions remained in issue on the motion, as set out in Schedules "C", "D" and "E" to Maple's factum.

Statutory and procedural provisions at issue

Micon raised a preliminary issue of whether Maple required leave to bring the motion under the former Construction Lien Act, section 67(2) of which provides that interlocutory steps, other than those provided for under the Act, shall not be taken without the consent of the court upon proof that the steps are necessary or would expedite the resolution of the issues in dispute. On the merits, the motion engaged the discovery rules of the Rules of Civil Procedure: Rule 31.06(1), requiring a person examined for discovery to answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue; the rule defining a failure to answer, including refusals and undertakings or advisements left unanswered within 60 days; and Rule 31.07(4), which confirms that nothing in the rules relieves a party who undertakes to answer a question from the obligation to honour the undertaking. These provisions are subject to the proportionality considerations in Rule 29.2.03, which direct the court to weigh factors such as the time, expense, prejudice, interference with the orderly progress of the action, availability of the information from another source, and the volume of documents that an order would require.

The court's reasoning and analysis

Associate Justice Kriwetz first rejected Micon's leave objection. Although Maple's original notice of motion did not seek leave, it was later amended to do so, and the court agreed with Maple that further leave was not required because the discovery plan approved by Justice Healey's Order already contemplated refusals motions, meaning leave had been explicitly granted. Leave was also implicitly granted from the fact that leave to conduct examinations for discovery had been granted, the motion being a natural part flowing from such leave, citing Gowing Contractors Ltd. v. Walsh Construction Company of Canada. Even if leave were still required, the court would have granted it as necessary or expediting the resolution of the issues in dispute. Turning to the questions in issue, the court set out the principles governing the scope of discovery summarized in Ontario v. Rothmans Inc. — including that the scope of discovery is defined by the pleadings, that "fishing expeditions" are not permitted, and that the court may keep discovery within reasonable and efficient bounds — and emphasized, citing Fyffe (Fyffe Loggin) v. Ontrac Equipment Services Inc., that undertakings are not subject to negotiation but are a promise the court enforces. For the three undertakings in Schedule C, the court found that neither of Micon's responses answered them, and that Micon's statements during submissions that it lacked the information were not the answers previously given; the two questions taken under advisement in Schedule C were found proper and relevant to issues pleaded, and Micon's responses non-responsive. In Schedule D, the court held that Micon's stated intention not to rely on a document at trial did not excuse it from fully answering an undertaking about that document, that a party who did not object to a question at discovery but instead gave an undertaking must answer it even if it considers the task monumental or beyond a witness's obligations, and that inadvertent oversight or reliance on answers to other undertakings did not satisfy the outstanding parts. In Schedule E, the court agreed with Micon that whether it would challenge the authenticity of Maple's documents was not a proper discovery question, since Maple could serve a request to admit instead, and accepted Micon's submissions that it need not review reports prepared by Maple's consultant, Cody McWatter, and opine on why it believes them incorrect. By contrast, the related questions about how DD Mac's billings were determined and the documents Micon relied upon in valuing its work were held relevant, as Maple submitted the information went to the heart of a claim in which Micon alleges it spent nearly double the originally estimated hours.

Ruling and overall outcome

The court ordered Micon to provide answers to the outstanding undertakings and the additional questions ordered to be answered within 45 days of the release of the endorsement, and directed that Jay Barlow re-attend further examinations on questions arising from those answers if Maple requires him to do so. Of the seventeen questions in issue, Micon was relieved of answering only three matters — the document-authenticity question and the two questions concerning the consultant's reports — making Maple Reinders Constructors Ltd. the largely successful party on the motion. No monetary amount was ordered, granted, or awarded in the endorsement: the parties had uploaded their respective Costs Outlines, and if they are unable to agree on the costs of the motion, they may forward costs submissions not exceeding three pages within 10 days of the release of the endorsement, so the costs of the motion remain undetermined on the face of the decision.