CITATION: Niagara Regional Housing v. Trustees of  
Carleton United Church, et al., 2022 ONSC 3413  
COURT FILE NO. CV-18-64583  
DATE: 20220607  
SUPERIOR COURT OF JUSTICE - ONTARIO  
RE:  
Niagara Regional Housing, Plaintiff  
AND  
Trustees of Carleton United Church and Bonnie Driver and Harland Young and  
Ross McCarthy and Ray Marshall and Jane Doe and Bill Leighfield and Carleton  
United Church and the United Church of Canada LEglise Unie Du Canada and  
Niagara Presbytery of the United Church of Canada and Hamilton Conference of  
the United Church of Canada and LEX Scientific Inc., Defendants  
BEFORE:  
Justice L. Sheard  
COUNSEL: Mark Abradjian and Greta Ladanyi, counsel for the Plaintiff/Responding Party  
Gabrielle K. Kramer and Julie Lesage, counsel for LEX Scientific Inc.  
Defendant/Moving Party  
Sean Murtha, counsel for the remaining Defendants/Responding Parties  
HEARD:  
April 19 and 22, 2022, via Videoconference.  
REASONS FOR JUDGMENT  
Overview  
[1]  
The defendant, LEX Scientific Inc. (“LEX”), moves for summary judgment to dismiss the  
claim of the plaintiff, Niagara Regional Housing (“NRH”) as against LEX, as well as the  
defendants’ crossclaim against LEX. The motion is brought pursuant to r. 20.04 (2)(a) of the Rules  
of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that there is no genuine issue requiring a  
trial. Counsel for the other co-defendants attended the hearing but advised that his clients took no  
position on the motion.  
[2]  
On June 17, 2016, NRH bought 527 Carleton St., St. Catharines, ON LXM 4X6 (the  
“Lands”) from the Carleton United Church (the “Church”). NRH purchased the Lands for the  
purpose of building social housing, which has been built.  
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[3]  
By Agreement of Purchase and Sale for the Lands signed on May 31 and June 1, 2016, the  
Church agreed to sell the Lands to NRH (the “APS”). At paragraph 22 of the APS, the Church  
makes representations and warranties that, to the best of its knowledge, information, and belief,  
there are no known environmental concerns pertaining to the Lands.  
[4]  
After the purchase was closed, NRH commissioned an environmental assessment of the  
Lands that revealed contaminated soil that had to be remediated in order to construct residential  
housing. NRH sues the Church and LEX for $401,854, which is its estimated damages associated  
with the remediation of the Lands.  
[5]  
In broad terms, NRH’s claims are based on negligent misrepresentation. The Church and  
LEX both defend the claim. As the issues on this motion relate to NRH’s claim against LEX, that  
is the focus of these reasons.  
NRH’s Claim Against LEX  
[6]  
Months prior to entering into the APS, the Church accepted LEX’s proposal to undertake  
a Phase I Environmental Site Assessment (a Phase I ESA”) pursuant to the CSA to Z768-01  
standards (the “Proposal”). The Phase I ESA was intended to provide the Church with “an  
overview of areas of possible environmental concern”1. It entailed a review of historical records  
relating to the Lands and a site inspection, but no soil testing.  
[7]  
LEX’s Standard Conditions formed part of the Proposal. The conditions included that the  
contents of any report were not to be published, used by, or disclosed to any party without LEX’s  
prior written consent and limited LEX’s liability to damages to the lesser of fees paid for the work  
($1,950.00) or the actual damages.  
[8]  
LEX completed a Phase I ESA report dated February 25, 2016 (the “LEX Report”), which  
was provided to the Church on March 16, 2016. The LEX Report identified no environmental  
concerns with respect to the Lands and did not recommend that a Phase II ESA be undertaken. A  
Phase II ESA is a more in-depth examination of the Lands, which includes testing of soil samples  
taken from boreholes made on the Lands.  
[9]  
Without LEX’s knowledge or consent, in April 2016, the Church gave a copy of the LEX  
Report to NRH.  
[10] NRH did not commission its own environmental assessment until after closing. NRH  
asserts that it relied on the LEX Report on its purchase of the Lands; that the LEX Report was  
prepared negligently; and that LEX is liable to NRH for the damages it suffered as a result.  
[11] Broadly stated, LEX defends NRH’s claim on the basis that LEX was not negligent; the  
LEX Report was prepared for the sole use of the Church; LEX had no knowledge of NRH; LEX  
1See, the Proposal.  
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owes no duty of care to NRH; and, that LEX is protected from any liability by virtue of the limited  
liability or disclaimer clause contained in LEX Report (the “Disclaimer Clause”).  
Issues to be Decided:  
[12] The issues on this motion are:  
(a)  
(b)  
Does the Disclaimer Clause exclude the imposition of a dutyof care byLEX to NRH?  
In the alternative, should NRH’s actions against LEX be dismissed because NRH’s  
alleged reliance on the LEX Report was unreasonable?  
(c)  
(d)  
Can NRH’s claim against LEX be decided on a motion for summaryjudgment?  
If so, has LEX established that, with respect to NRH’s claim, there is no genuine issue  
requiring a trial?  
(e)  
If so, should the co-defendants’ crossclaim against LEX for contribution and  
indemnity also be dismissed?  
[13] LEX asserts that, for the purposes of this motion, the court need not decide:  
(i)  
whether the LEX Report was negligently prepared;  
(ii)  
whether LEX knew the purpose for which the LEX Report was requested;  
(iii) whether other evidence, not before the court on this motion, might be found or  
called at trial.  
Background  
The Parties  
[14] NRH is a non-profit corporation, acting as service manager for the Region of Niagara and  
provides affordable housing in the Region. When acquiring properties, NRH works with the real  
estate department at the Niagara Region and must obtain approval from Regional Council for any  
acquisition of property.  
[15] On this motion, NRH puts forth the affidavit of Donna Woiceshyn (“Woiceshyn”), the  
manager of housing operations at the time. NRH also puts forth the affidavit of Kyle Stewart, a  
law clerk with Ross & McBride, litigation counsel for NRH.  
[16] In 2018, in the context of this litigation, Ross & McBride retained XCG Environmental  
Engineers & Scientists (“XCG”) to provide an opinion on whether LEX met the applicable  
standard of care when completing the Phase I ESA and the LEX Report. XCG reported to Ross &  
McBride that LEX did not meet the requisite standard (the “XCG Report”). NRH relies on the  
XCG Opinion in support of its assertion that LEX was negligent.  
4
[17] Thomas Kolodziej (“Kolodziej”), Senior Project Manager for XCG, is a Licensed  
Professional Engineer and recognized as a Qualified Person for the purpose of conducting  
Environmental Site Assessments. Kolodziej signed the XCG Report. Kolodziej’s affidavit, sworn  
April 14, 2020, was submitted on behalf of NRH on this motion.  
[18] The Church is an unincorporated religious association and held title to the Lands through  
its Trustees. The Church has put forth no evidence on this motion.  
[19] LEX is a corporation that provided environmental consulting and laboratory services. On  
this motion, LEX relies on the affidavit of its principal, Michael Hoffbauer (“Hoffbauer”).  
[20] Cross-examinations were conducted and the transcripts were available on this motion.  
Chronology of Events  
[21] In 2015, the church building on the Lands burned down. The Church decided to sell the  
Lands.  
[22] NRH was interested in purchasing property on which to build residential social housing.  
In the fall of 2015, NRH and the Church entered into negotiations for the NRH’s purchase of the  
Lands. The negotiations ended without an agreement.  
[23] In January 2016, LEX was contacted by a representative of the Church seeking  
environmental consulting services. LEX submitted the Proposal to the Church, estimating the cost  
would be no more than $1,950. The Proposal was accepted by Bill Leighfield (“Leighfield”) on  
behalf of the Church.  
[24] The LEX Report was completed on February 25, 2016, and a copy provided to Leighfield  
via email on March 16, 2016. In the cover letter to Leighfield, and in the Executive Summary in  
the LEX Report, LEX states that the purpose of the Phase I ESA was “to satisfy the conditions of  
refinancing a bank loan”. However, at paragraph 6.1 of the LEX Report, it states that the purpose  
of the Phase I ESA was “to satisfy any conditions regarding the sale of the property”. Neither  
statement was accurate. In its email to LEX, the Church stated that it was “moving ahead with the  
process of preparing this property [the Lands] for further development.”  
[25] When it accepted the Proposal, the Church was not intending to refinance the Lands nor  
was the Church subject to any conditions regarding the sale of the Lands; NRH did not make an  
offer to buy the Lands until April 2016, and the APS was not fully signed until June 1, 2016.  
[26] When cross-examined on his affidavit, Hoffbauer acknowledged that it appeared to him  
that portions of the LEX Report had been taken from a precedent, which contained content not  
applicable to the circumstances.  
Negotiations between NRH and the Church  
[27]  
By email of April 8, 2016, Leighfield sent Woiceshyn the March 16, 2016 email he had  
received from LEX that attached the LEX Report. The LEX Report was reviewed by Woiceshyn,  
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and by Willi Pankratz, NRH Project Manager, and Don White, NRH’s Manager of Housing  
Operations.  
[28]  
On April 29, 2016, NRH made an offer to purchase the Lands.  
[29] On May 19, 2016, Niagara Regional Council approved the purchase.  
[30] On May 20, 2016, NRH retained exp Services Inc (“EXP”) to undertake a geotechnical  
investigation of the Lands. The purpose of this investigation was to determine the subsoil and  
groundwater conditions on the Lands. To do this, EXP was to dig six boreholes on the Lands and,  
based on an assessment of the data thereby obtained, to provide “an engineering report containing  
general geotechnical recommendations pertinent to the proposed construction” of a four to six  
storey building, with a full basement and associated paved parking area.  
[31] On May 31 and June 1, 2016, the Church signed back its acceptance of the NRH offer. The  
closing date was set for June 17, 2016.  
[32] The APS will be discussed in greater detail later in these reasons.  
[33]  
On June 1, 2016, EXP provided its geotechnical report to NRH (the “EXP Geo Report”).  
EXP noted the discovery of “fill material”, which also contained charred wood. EXP made  
recommendations to NRH related to construction on “fill sections”. These included the removal  
of the fill, and chemical testing of it to ensure that the fill met with Ministry of the Environment  
(“MOE”) guidelines.  
[34] Appendix “A” to the EXP Geo Report provides “Notes on Sample Descriptions”, which  
read, in part, as follows:  
Some fill material may be contaminated by toxic/hazardous waste that renders it  
unacceptable for deposition in any but designated land fill sites; unless specifically  
stated the fill on this site has not been tested for contaminants that may be  
considered toxic or hazardous. This testing and a potential hazard study can be  
undertaken if requested. In most residential/commercial areas undergoing  
reconstruction, buried oil tanks are common and are generally not detected in a  
conventional geotechnical site investigation.  
[35] In cross-examination, Woiceshyn acknowledged that NRH was aware that the church  
building had burned down in 2015 and that some wood would need to be removed.  
[36] Woiceshyn also acknowledged that she was familiar with environmental site assessments,  
which were required for provincial funding. As NRH was planning to change the use of the Lands  
to residential housing, it was a requirement of provincial funding that a Record of Site Condition,  
prepared by a qualified person (“RSC”), be registered on title.  
[37] In its claim and on this motion, NRH asserts that it relied on the LEX Report when it  
decided to purchase the Lands and to not retain its own consultant to conduct a Phase I ESA.  
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[38] By email of June 3, 2016, Pankratz contacted Hoffbauer to ask LEX to provide a quote for  
the registration of an RSC. That email made no mention of the LEX Report. There is no record of  
Hoffbauer responding to this email. On June 14, 2016, at 3:15 p.m., Pankratz reported to  
Woiceshyn that LEX had not replied to his email.  
[39] After receiving the email from Pankratz, Woiceshyn telephoned, and emailed, Stephen  
Vanderhorst of LEX (“Vanderhorst”) to ask if LEX could register the LEX Report so that NRH  
could register an RSC. According to Woiceshyn, Vanderhorst indicated that he did not have the  
necessary certification to register an RSC and the person with the qualifications was not available.  
[40] Vanderhorst is no longer with LEX and his evidence is not before the court. Also, if he  
made any notes related to the Lands or to his communications with NRH, his notes are no longer  
available as they were destroyed when LEX moved offices.  
[41] Pankratz and Woiceshyn acknowledge that neither of them disclosed to Hoffbauer or  
Vanderhorst that NRH was relying on the LEX Report or that, at the time of their emails and  
telephone call to LEX, NRH was still in a conditional period under the APS.  
[42] At 3:23 p.m. on June 17, 2016, Vanderhorst responded to Woiceshyn’s email. He advised  
her that LEX would not be able to assist NRH with the RSC. According to the property registration  
information, title to the Lands was registered to NRH at 2:51 p.m. on June 17, 2016. Thus,  
Vanderhorst’s email was sent after closing.  
Events After NRH’s Purchase  
[43] On June 20, 2016, Pankratz contacted EXP to ask what it would charge to register the LEX  
Report or an RSC on title to the Lands and that if EXP had to conduct a peer review (presumably  
of the LEX Report), to provide its cost for that service. EXP responded that, prior to registering an  
RSC, EXP would need to reproduce a Phase I ESA report that was compliant with the more  
stringent O. Reg 153/04 standard” than was used to prepare the LEX Report which was written  
to the less stringent CSA Z768-01 standard and did not appear to have been completed by a  
qualified person (P. Eng or P. Geo.)2.  
[44] EXP’s estimated its cost to complete a Phase I ESA to the O. Reg 153/04 standard would  
be $3000 + HST, plus an additional $2000 + HST to register the RSC. NRH retained EXP to do  
that work.  
[45] On September 30, 2016, EXP provided NRH with its Phase I ESA report. It identified  
various areas of possible sources of contamination of the Lands, consequent to the historical use  
of the Property as an orchard; for a rail line; the fire in 2015 [that precipitated the sale of the  
Lands]; and the use of imported fill, brought in after the church building was demolished following  
the fire. None of these risks was identified in the LEX Report.  
2 Woiceshyn Affidavit, at Ex. “K”.  
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[46] NRH also retained EXP to undertake a Phase II ESA assessment and report, which  
confirmed that the presence of contaminants in the Lands required remediation. NRH completed  
the remediation, which included removing 5686 tonnes of soil from the Lands.  
The APS  
[47] The terms of the APS are relevant to the chronology of events.  
[48] Under the APS, the Church agreed to sell the Lands for $1,050,000.000. The APS was  
irrevocable by NRH until 4:30 on June 6, 2016, and subject to funding by Council of the Regional  
Municipality of Niagara by June 10, 2016. The closing date was set for June 17, 2016.  
[49] Paragraph 22 of the APS contains representations and warranties from the Church,  
including that the Church represents and warrants to NRH that to the best of its knowledge  
information and belief:  
(a)  
there has been no release, deposit, spill, disposal, leakage or discharge of any  
contaminant, waste, pollutant, or hazardous substance on, from, under or to the  
Lands;  
(b)  
there are no facts or conditions relating to the Lands that could give rise to any  
remedial obligations, claims, demands or orders;  
(c)  
(d)  
the Lands have not been used as a waste disposal site; and  
no storage tanks are or have been on, at or under the Lands.  
[50] Paragraph 23 reads:  
The Owner [the Church] shall provide NRH with all consents or authorizations  
(written or otherwise) necessary or desirable to enable NRH to obtain information  
as NRH may consider necessary or advisable in determining the environmental  
condition of the Lands within three (3) days after the request therefor.  
[51] On this motion, there is no evidence that such a request was made.  
[52] Among other things, paragraph 24 of the APS entitles NRH to rescind the APS at its sole  
option if, on the closing date, NRH is not satisfied with the results of any environmental test or  
any other examination permitted by paragraph 25.  
[53] Paragraph 25 of the APS grants NRH the right of entry onto the Lands from the date of the  
acceptance of the APS “for the purposes of inspection, survey, geo-technical examinations,  
performing environmental testing and all such further testing as it deems necessary to determine  
the suitability of the site for its intended uses as a multi- unit residential building...including, but  
not limited to, obtaining soil samples and drilling test holes.  
8
[54] Paragraph 29 of the APS provides that the APS “constitutes the entire Agreement between  
the Owner [the Church] and NRH and there are no representations, warranties, collateral  
agreements or conditions affecting this Agreement or the Lands other than as expressed herein in  
writing.”  
The Statement of Claim  
[55] On February 23, 2018, NRH issued a claim against LEX and the Church. NRH asserts,  
among other things, that LEX is liable to NRH for negligent misrepresentation in that:  
(a)  
(b)  
LEX owed a duty of care to NRH in its preparation of the LEX Report;  
LEX breached its duty to conduct the LEX Report with the care and skill expected  
of a reasonably competent environmental assessment consultant;  
(c)  
(d)  
that LEX, in fact, knew that NRH was relying on the LEX Report or that Lex ought  
to have known that NRH or any potential purchaser would rely on the LEX Report;  
and  
that NRH relied on the LEX Report and suffered damages by reason of the  
negligent misstatement(s) in the LEX Report.  
[56] In its statement of defence and crossclaim against the Church, among other things, LEX:  
(i)  
denies that it was negligent;  
(ii)  
asserts that pursuant to the Standard Conditions that form part of the Proposal, the  
LEX Report was not to be provided to any third party without LEX’s written  
consent and that the Church gave a copy of the LEX Report to NRH without LEX’s  
knowledge and without seeking or obtaining LEX’s consent;  
(iii)  
(iv)  
(v)  
states that the LEX Report contains a disclaimer noting that it was prepared for the  
benefit of Leighfield and that LEX accepted no responsibility for damages suffered  
by a third party who used or relied on the LEX Report;  
states that LEX was never asked for a reliance letter from NRH, who, through the  
clear wording in the disclaimer, had notice that LEX had limited any duty of care  
or liability; and  
denies that NRH relied, or reasonably relied, on the LEX Report or suffered  
damages as a result.  
[57] In its defence and crossclaim, the Church denies liability to NRH on the basis that it  
retained and relied upon LEX to perform a Phase I ESA.  
The LEX Report  
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[58] The Disclaimer Clause is found at Section 16.0 of the LEX Report, and reads:  
16.0 DISCLAIMER  
This report is prepared exclusively for the purposes, project and site location  
outlined in the report. The report is based on information provided to, or collected  
and/or obtained by LEX as indicated in the report, and applies solely to site  
conditions existing at the time of sampling. LEX's report represents a reasonable  
analysis and interpretation of available information within an agreed scope of work,  
schedule and budget.  
LEX prepared this report for the sole benefit of Bill Leighfield.; it reflects LEX's  
best judgement in light of the information available at the time of preparation. Any  
use which a third party makes of this report, or any reliance on or decisions made  
based on it, are the responsibilities of such third parties. LEX accepts no  
responsibility for damages, if any, suffered by any third party as a result of  
decisions made or actions taken based on this report. (emphasis added),  
Evidence on this Motion  
[59] From the cross-examination of Woiceshyn, evidence was given that:  
(1) Niagara Regional Council approved the purchase of the Lands on May 19, 2016;  
(2) NRH had familiarity with retaining environmental consultants. NRH did not retain  
LEX, nor was NRH aware that LEX was being retained by the Church to the LEZ  
Report, and NRH had no involvement in the Church’s decision as to which  
consultant to retain;  
(3) the Church provided NRH with the LEX Report on April 8, 2016;  
(4) Woiceshyn read the Disclaimer Clause and understood that it said that the only  
person entitled to rely on the LEX Report was Leighfield3;  
(5) NRH did not request a reliance letter from LEX;  
(6) apart from the voicemail message Woiceshyn left with LEX in early June 2016,  
which was not returned, the first communication that NRH had with LEX was on  
June 14, 2016. The purpose of this contact was to ask if NRH could retain LEX to  
register the LEX Report and/or an RSC on title;  
(7) LEX advised NRH that it could not register the LEX Report;  
3 On this motion, LEX acknowledges that Leighfield was the contact person for the Church and that the LEX Report  
was prepared for the Church.  
10  
(8) in Woiceshyn’s communications with LEX, she did not disclose that NRH was in a  
conditional period pursuant to the APS;  
(9) Woiceshyn acknowledged that she was aware that when consultants are retained,  
their contracts typically have conditions attached to them;  
(10) NRH has no evidence that the Church sought permission for NRH to rely on the  
LEX Report;  
(11) the LEX Report was provided to NRH’s legal [real estate] counsel on June 14, 2016.  
NRH has refused to provide produce its lawyer’s purchase file or reporting letter on  
the purchase4;  
(12) LEX had no knowledge of NRH, nor did LEX grant permission to the Church to  
provide NRH with the LEX Report; and  
(13) in providing the LEX Report to NRH, without seeking or obtaining LEX’s written  
permission to do so, the Church breached the terms of the Proposal.  
[60] When Kolodziej was cross-examined on his affidavit, he was asked about paragraph 5. of  
the XCG Report, entitled “Limitations”, which reads, in part, as follows:  
…This letter is prepared for the sole benefit of the Ross & McBride LLP and may  
not be relied upon by any other person or entity without the written authorization  
of XCG Consulting Limited. Any use or reuse of this document by parties other  
than those listed above is at the sole risk of those parties.  
[61] Set out below are questions asked of and answers given by Mr. Kolodziej taken from the  
transcript5:  
Q.  
So I take it that the inclusion of limiting conditions in an environmental  
consulting report is an industry standard, in your experience?  
A.  
Q.  
Yes, it is.  
And this is the way that the environmental consulting industry limits its  
liability to third parties that don't have a contract with it?  
A.  
This is how XCG limits liabilities. I think it's used by everybody else  
to an extent, yes.  
Q.  
And in XCG's report, you provide in the limiting conditions that the letter  
is prepared for the sole benefit of Ross & McBride LLP and may not be relied on  
4 LEX submits that the court should draw an adverse inference from this refusal.  
5
At Caselines pp. B-1-683-684.  
11  
by any other person or entity without the written authorization of XCG Consulting  
Limited?  
A.  
Q.  
That's correct.  
And any use or reuse of the document by parties other than those listed  
above is at the sole risk of those parties. So your expectation would be that no other  
party would seek to rely on this report unless they specifically contacted XCG to  
request permission to use the report?  
A.  
That's correct.  
[62] Mr. Kolodziej was also asked about the Disclaimer Clause. The following is excerpted  
from the transcript6:  
Q.  
And in terms of the LEX report, if we go to the disclaimer -- the LEX report  
being Exhibit E to Ms. Woiceshyn's affidavit –  
A.  
Q.  
Okay.  
It provides under Section 16, "Disclaimer," in the second paragraph, that  
any use which a third party makes of this report or any reliance on or decisions  
made based on it are the responsibilities of such third parties. LEX accepts no  
responsibility for damages, if any, suffered by any third party as a result of  
decisions made or actions taken based on this report.  
You'll agree with me, Mr. Kolodziej, that this disclaimer is reasonably  
similar to the disclaimer contained in your own report, yes?  
A.  
Q.  
A.  
Yes.  
And that this disclaimer is also consistent with industry standards?  
Yes.  
[63] The evidence of NRH’s expert is consistent with the position taken by LEX in this action  
and on this motion, that the Disclaimer Clause is standard in the industry and intended to limit  
liability to third parties.  
[64] On this motion, NRH takes the position that the record before the court is incomplete in  
that there is no evidence from Vanderhorst, and that LEX’s internal notes and records were  
destroyed. NRH asserts that LEX is liable for spoliation in that it deliberately destroyed records  
6 At Caselines pp. B-1-685- 686.  
12  
after the litigation began and that the court should draw the adverse inference that the documents  
that were destroyed would have been detrimental to LEX in the litigation.  
[65] LEX’s response to NRH’s assertions is that: Vanderhorst no longer works for LEX;  
Hoffbauer also signed the LEX Report and was an informed and appropriate witness, who was  
produced for cross-examination; and, any internal records that were destroyed were lost or  
destroyed through inadvertence, when LEX moved offices, such that the principle of spoliation  
does not apply.  
Findings of Fact  
[66] While I recognize that at trial each party might choose to lead evidence that was not put  
before the court on this motion, on the evidentiary record on this motion, and without recourse to  
the enhanced fact-finding powers available to the court under r.20.04 (2.1), I am able to make the  
following findings of fact:  
1.  
2.  
3.  
4.  
5.  
6.  
7.  
NRH did not succeed in connecting with anyone at LEX until June 14, 2016, two  
days before the closing of the purchase of the Lands;  
The Church did not consult with NRH as to who to it chose to complete a Phase I  
ESA, and NRH had no input into the Church’s choice of LEX;  
When the Church provided NRH with the LEX Report, it did so without LEX’s  
knowledge or permission, and in violation of the Proposal;  
At no time prior to the completion of the purchase of the Lands was LEX told that  
NRH was relying in any way upon the LEX Report;  
Until June 14, 2016, LEX did not know that that the Church had provided NRH  
with a copy of the LEX Report;  
There is no evidence that LEX knew that NRH was relying on the LEX Report in  
its purchase of the Lands;  
At no time did NRH tell LEX that it was relying on the LEX Report or that the  
closing of the purchase was June 17, 2016, and that up to that date, NRH was able  
to rescind the APS (i.e. the “conditional period”);  
8.  
9.  
NRH was aware of the LEX Report prior to entering into the APS but makes no  
mention of it in the APS, which, at paragraph 29, contains an “entire agreement”  
clause;  
NRH was aware of and understood the Disclaimer Clause, by which LEX makes it  
clear that no third party may rely upon the LEX Report without the written  
permission of LEX;  
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10.  
The XCG Report contains a disclaimer clause similar to the Disclaimer Clause, the  
wording of which, Kolodziej testified, was in keeping with industry standards;  
11.  
12.  
NRH never asked for LEX’s permission to rely on the LEX Report;  
On June 14, 2016, some three days prior to closing, NRH requested LEX to register  
the LEX Report and/or an RSC on title, for which NRH expected to be charged a  
fee. LEX declined that retainer and never gave permission for NRH to use the LEX  
Report in any way; and,  
13.  
There was no necessity for NRH to rely on the LEX Report: the APS granted NRH  
full access to the Lands, a right which NRH exercised so that EXP could conduct a  
geotechnical site investigation, and NRH could have obtained its own Phase I ESA.  
[67] LEX submits that the EXP Report flagged a potential concern that some fill on the Lands  
“may be contaminated by toxic/hazardous waste” and had not been tested and that a potential  
hazard study can be undertaken if requested.In her evidence, Woiceshyn said she viewed EXP’s  
comments that the fill could be tested as EXP “looking for more business”.7  
The Law  
Summary Judgment  
[68] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant  
summary judgment if the court is satisfied that there is no genuine issue requiring a trial with  
respect to a claim or defence.  
[69] As set out in Hryniak v. Mauldin,8 there will be no genuine issue requiring a trial:  
…when the judge is able to reach a fair and just determination on the merits on a  
motion for summary judgment. This will be the case when the process (1) allows  
the judge to make the necessary findings of fact, (2) allows the judge to apply the  
law to the facts, and (3) is a proportionate, more expeditious and less expensive  
means to achieve a just result.”9  
[70] To be appropriate, summary judgment must provide a “fair and just adjudication” that  
allows the judge to “find the necessary facts and resolve the dispute. [T]he standard for fairness is  
not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that  
she can find the necessary facts and apply the relevant legal principles so as to resolve the  
dispute.”10  
[71] Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion  
7 Woiceshyn transcript, at Caselines Master B-1-228.  
8 2014 SCC 7, [2014] 1 S.C.R. 87.  
9 Ibid, at para. 49.  
10 Ibid, at para. 50.  
14  
for summary judgment:  
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring  
a trial, the court shall consider the evidence submitted by the parties and, if the  
determination is being made by a judge, the judge may exercise any of the following  
powers for the purpose, unless it is in the interest of justice for such powers to be  
exercised only at a trial:  
(1) Weighing the evidence.  
(2) Evaluating the credibility of a deponent.  
(3) Drawing any reasonable inference from the evidence.  
[72] Hyrniak offers a “roadmap” for a summary judgment motion, at para. 66:  
On a motion for summary judgment under Rule 20.04, the judge should first  
determine if there is a genuine issue requiring trial based only on the evidence  
before her, without using the new fact-finding powers. There will be no genuine  
issue requiring a trial if the summary judgment process provides her with the  
evidence required to fairly and justly adjudicate the dispute and is a timely,  
affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to  
be a genuine issue requiring a trial, she should then determine if the need for a trial  
can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may,  
at her discretion, use those powers, provided that their use is not against the interest  
of justice. Their use will not be against the interests of justice if they will lead to a  
fair and just result and will serve the goals of timeliness, affordability and  
proportionality in light of the litigation as a whole.  
[73] The principles set out in Hyrniak governing summary judgment motions were considered  
by the Court of Appeal in Broadgrain Commodities Inc. v. Continental Casualty Company, 2018  
ONCA 438 ()), at para 7:  
On a summary judgment motion the parties are expected to put their best foot forward and  
the court will assume that all necessary evidence has been tendered. A motion judge is  
entitled to presume that the evidentiary record is complete and there will be nothing further  
if the issue were to go to trial. A motion judge is not required to resort to the summary  
judgment enhanced powers to remedy a party’s evidentiary shortcomings. (All citations  
omitted).  
[74] NRH submits that if LEX is successful, the court would be granting partial summary  
judgment, which run counter to the principles set out by the Court of Appeal for Ontario in Butera  
et al v. Chown, Cairns LLP et al, 2017 ONCA 783 ().  
[75] At para. 34 of Butera, the Court states about partial summary judgment that it:  
15  
...should be considered to be a rare procedure that is reserved for an issue or issues  
that may be readily bifurcated from those in the main action and that may be dealt  
with expeditiously and in a cost-effective manner. Such an approach is consistent  
with the objectives described by the Supreme Court in Hryniak and with the  
direction that the Rules be liberally construed to secure the just, most expeditious  
and least expensive determination of every civil proceeding on its merits.”  
[76] Later decisions of this court have applied the above principles. In reference to motions for  
partial summary judgment, in Nadeau v CBRE Limited, 2020 ONSC 1150 (), at para. 74,  
Emery J. stated:  
These cases were reviewed by Sanfilippo J. in Joroga Real Estate Ltd. [74] v. State  
Farm Fire and Casualty Co., 2019 ONSC 2730. After reviewing these cases along  
with Butera and other appellate decisions where the court did not uphold partial  
summary judgment, Sanfilippo J. captured the distinction concisely at para. 34:  
[34] The cases where partial summary judgments have been upheld  
have all shared certain common elements. First, the partial summary  
judgment resolved a discrete, standalone issue that could be severed  
from the other claims or parties in the surviving case. Second, the  
motion was capable of being adjudicated on factual findings that did  
not intersect or overlap with the factual findings required to  
determine the issues left for trial, on an evidentiary record that  
reflected the evidence expected at trial, such that there was no risk  
of duplication or inconsistent findings. Third, the summary motion  
could be dealt with expeditiously and in a cost effective manner and,  
fourth, the motion served the overarching objective of advancing the  
litigation as a whole.  
[77] I repeat and adopt the above comments of Emery J. and the analysis of Sanfilippo J.  
[78] On this motion, LEX seeks an order dismissing the action in its entirety as against it,  
including the Church’s crossclaim. LEX submits that this court need not determine whether LEX  
was negligent but, rather, whether the Disclaimer Clause is sufficient to protect LEX from liability  
to third parties. The Church has taken no position on this motion and, as drafted, its crossclaim can  
succeed only if LEX is found liable to NRH, as a joint and several tortfeasor.  
Disposition: Summary Judgment is Appropriate  
[79] In my view, summary judgment is appropriate in this case because:  
(1)  
the determination of LEX’s liability is a discrete, standalone issuethat is capable  
of being severed from NRH’s claim against the Church;  
(2)  
for similar reasons, the facts that apply to a determination of LEX’s motion –  
whether the Disclaimer Clause protects it from NRH’s claim – does not intersect or  
16  
overlap with the factual findings that may need to be made to determine the  
Church’s liability to NRH;  
(3)  
(4)  
the two-day hearing on this motion for summary judgment, which can resolve the  
claim against one defendant in its entirety, is more effective than a lengthy trial  
which, in this case, would require expert evidence on the standard of care that  
applied to the LEX Report; and  
determining NRH’s claim against LEX on this motion, will serve the overarching  
objective of advancing the litigation as whole: the issues left to be determined at  
trial would be limited to Church’s liability, if any, to NRH, and the quantification  
of NRH’s damages.  
[80] Support for LEX’s position that this is an appropriate case for summary judgment can also  
be found in in Extreme Venture Partners Fund LLP. V. Varma, 2019 ONCA 446 ()11, at  
para. 9, at which the Court stated:  
The appellants argue that this was not a proper case for partial summary judgment.  
This was not a partial summary judgment as the claim against the respondent was  
dismissed in its entirety. The appellants’ claims against the other defendants did  
proceed to trial but, as the claim against the respondent could be determined on a  
discrete legal issue pertinent only to the liability of the respondent, the motion judge  
did not err in dismissing the claim on that basis.  
[81] For the reasons set out above, I conclude that LEX’s motion is appropriately brought  
and heard by way of summary judgment.  
Spoliation and Adverse Inference  
[82] The following is excerpted from paragraph 73 of NRH’s factum, which relates to NRH’s  
claim of spoliation and the inference that should be drawn:  
A finding of spoliation requires four elements to be established on a balance of  
probabilities:  
1) the missing evidence must be relevant;  
2) the missing evidence must have been destroyed intentionally;  
3) at the time of destruction, litigation must have been ongoing or  
contemplated; and  
11 See also Malik v Attia, 2020 ONCA 787 () at para. 62; and Feltz Design Build Ltd. v Larson, 2022 ONCA  
150 (), at para. 17.  
17  
4) it must be reasonable to infer that the evidence was destroyed in order  
to affect the outcome of the litigation.  
[83] NRH submits that Hoffbauer’s evidence was that his and Vanderhorst’s notes from  
interviewing Leighfield and other individuals for the Phase I ESA were probably destroyed or  
disposed of when LEX moved offices in June 2017. NRH submits that when the notes were lost  
or destroyed, LEX was on notice of NRH’s claim and that Hoffbauer and Vanderhorst’s notes are  
relevant and would reasonably be expected to include additional information as to the purpose of  
the LEX Report and its intended use.  
[84] NRH asserts that “LEX mishandled the documents in this file, resulting in their destruction  
or disposal” and submits that LEX either “intentionally destroyed the relevant evidence from its  
NRH file or was careless in allowing it to be disposed during its move” and that the court should  
draw an inference that the destroyed documents would have been unfavourable to LEX and would  
have supported the position taken by NRH on this motion.  
[85] LEX submits that the evidence does not meet the test as articulated above: that there is  
insufficient evidence to find that the evidence was intentionally destroyed in order to affect the  
outcome of the litigation.  
[86] I accept LEX’s submissions.  
Disposition: Spoliation not Established  
[87] If NRH believed the evidence of what was discussed between LEX and the Church to be  
relevant, it was open to NRH to examine a representative of the Church. However, on this motion,  
there is no evidence from the Church. Secondly, as explained in greater detail below, what LEX  
may have known about the purpose of the Phase I ESA is not determinative: I find that LEX had  
a right to limit its liability by way of the Disclaimer Clause and I find no basis in fact, or law, to  
interfere with that right.  
Duty of Care  
[88]  
There was no contract between LEX and NRH, whose claim is based in negligence. For it  
to succeed in its claim against LEX, NRH must establish both that LEX owed it a duty of care and  
that the duty was not effectively limited or waived by the Disclaimer Clause.  
[89] That issue was addressed in Wolverine Tube (Canada) Inc. v. Noranda Metal Industries  
Ltd., 1994 7346 (ON SC), affd. 1995 785 (ON CA), a case referred to by both  
parties. The facts in Wolverine are strikingly similar to the facts in this case.  
[90] The plaintiff, Wolverine, sued Arthur D. Little of Canada, Limited (“Little”) alleging that  
Little was negligent in completing environment compliance audits for Little’s client, Noranda  
Metal Industries Ltd. In the course of negotiating a sale of its properties, Noranda showed the Little  
reports to Wolverine. Wolverine had no dealings with Little, who had no knowledge of the sale to  
Wolverine until years later. Similar to the LEX Report, Little’s reports contained a disclaimer  
18  
clause stating that Little accepted no responsibility for damages suffered by reliance on the report  
by any third party.  
[91] Little moved for summary judgment to dismiss the action against it. For the purposes of  
Little’s motion, it was agreed that the court could assume that the Little reports contained negligent  
misstatements. The issue before the court was, as here, whether Little’s disclaimer clause excluded  
the imposition of a duty of care on Little. The motions judge determined that it did, and dismissed  
the action against Little. On appeal, the court upheld the motions judge’s decision, finding that he  
was correct to determine the issue on a motion for summary judgment and to dismiss the claim  
against Little:1995 785 (ON CA).  
[92] The Court of Appeal for Ontario adopted the analysis made by the motions judge, who had  
applied the principles found in Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465, 2  
All E.R. 575 (H.L.), which remains a leading case on liability for negligent misstatement.  
[93] The factual starting point on the motion judge’s decision is found at para. 12:  
(a)  
(b)  
the parties to the action are commercially sophisticated entities who knew or should  
have known what they were doing when they entered into the transactions at issue;  
and  
there was no privity of contract between Wolverine and Little so that any liability  
to Wolverine by Little arises in negligence.  
[94] Similarly, in this case, the evidence supports a finding that each of NRH, the Church, and  
LEX, are sophisticated entities who knew or should have known what they were doing when they  
entered into the subject transactions; and, there is no privity of contract between NRH and LEX.  
[95] The motions judge also considered Edgeworth Construction Ltd. v. N.D. Lea & Associates,  
[1993] 3 SCR 206, a case in which the Court found that a duty of care was owed by the defendant  
to an unknown third party. In Edgeworth, the plaintiff claimed to have lost money on a  
construction project because of errors in the specifications and construction drawings prepared by  
the defendant. The plaintiff sued the defendant on the basis of negligent misrepresentation.  
[96] The Supreme Court of Canada overturned the lower courts’ dismissals of the action, and  
determined that, in the absence of a disclaimer clause, which would have protected the defendant  
engineering firm from liability to third parties, the firm was liable in tort.  
[97] In Edgeworth, the Court cited both Hedley Bryne and its own decision in Haig v. Bamford,  
1976 6 (SCC) and stated;  
Liability for negligent misrepresentation arises where a person makes a  
representation knowing that and other may rely on it, and the plaintiff in fact relies  
on the representation to its detriment.  
[98] On the facts before it, the Court found that the engineers undertook to provide information  
for a tender package which was to be used by a definable group of persons with whom the  
19  
engineers had no contractual relationship, and the engineers knew that the purpose of their  
information was to allow tenders to prepare a price and that reliance upon this information was  
reasonable and foreseeable.  
[99] The Court then considered whether the engineering firm could claim the benefits of the  
disclaimer clause inserted by the province (with whom the plaintiff had contracted), which made  
it clear that the province did not assume the risk of error in the engineering firm’s work. The Court  
concluded that the engineering firm was responsible for its own misrepresentations, knowing that  
they would be relied upon, and “in the absence of any disclaimer of responsibility.” The Court  
stated that “as a matter of policy, good practical and economic sense required that the responsibility  
for the accuracy of the design be placed on the shoulders of the design engineering firm, assuming  
reasonable reliance and barring disclaimers”. (emphasis added).  
[100] The appellate court in Wolverine, quoting from McLachlin J. in Edgeworth, provided a  
clear statement of the basis on which liability for misrepresentation is found and escaped:  
[McLachlin J.] The responsibility of the engineering firm arises  
from its own misrepresentation, coupled with the knowledge that  
contractors will be relying on it and acting on it without practical  
opportunity for independent inquiry, in the absence of any  
disclaimer of responsibility.  
McLachlin J.'s statements at pp. 217 and 220 also indicate that disclaimer clauses  
have the effect of avoiding liability to third parties:  
[McLachlin J.] Moreover, the engineering firm, unlike the  
employees in London Drugs [London Drugs Ltd v. Kuehne & Nagel  
International Ltd., [1992] 3 S.C.R. 299], could have taken measures  
to protect itself from the liability in question. It could have placed a  
disclaimer of responsibility on the design documents.  
[101] In upholding the motion judge’s decision, the Court of Appeal found that Little did not owe  
a duty of care to Wolverine because:  
(1)  
The Little reports contained a disclaimer of liability to third parties. The disclaimer  
appeared on each report, and the evidence showed that Wolverine read the  
disclaimer and obtained legal advice on its meaning;  
(2)  
(3)  
Noranda was under a contractual obligation not to use the Little reports without  
Little’s written permission; and  
The Little reports were in Wolverine’s hands only because Noranda, without  
Little’s knowledge or consent, acted in breach of its contract with Little.  
[102] The Court also found that, while the language in the disclaimer clause was broad enough  
to prevent the assumption of a duty of care to Wolverine and to preclude Wolverine from  
20  
substantiating a claim in negligence against Little, the fact that the reports were given to Wolverine  
without Little’s knowledge or permission provided additional justification for a finding that a duty  
of care did not arise on the facts.  
[103] The Court of Appeal upheld the decision of the motions judge that there was no genuine  
issue for trial.  
[104] Wolverine and Edgeworth both stand for the principle that a disclaimer clause can  
extinguish any duty of care and defeat a claim in negligence, even when the plaintiff establishes  
actual negligence.  
[105] It is difficult to imagine two cases whose facts could be more similar than those of  
Wolverine and the case before this court.  
[106] The impact of a disclaimer clause contained in a Phase I ESA was recently considered in  
Community Mental Health Initiative Inc. v. Summit Lounge Ltd., 2014 NLCA 42 (“Stantec”).  
[107] The language of the disclaimer clause in Stantec12 was substantially the same as that used  
in the Disclaimer Clause. Similar to the outcome in Wolverine, in Stantec the motions judge  
granted summary judgment, dismissing the claim brought by the third party purchaser against the  
consultant who had prepared a Phase I ESA report for the vendor.  
[108] The facts in Stantec differ from the facts in this case. In Stantec, the vendor was  
contractually obligated to provide the purchaser with a Phase I ESA report and Stantec was told  
that its report was to facilitate the sale to an identified vendor.  
[109] However, the disclaimer clause in Stantec is similar to the Disclaimer Clause and provided  
that: 1) third parties were barred from relying on Stantec’s report; 2) the report was prepared for  
the sole benefit of the vendor; 3) the report was not to be used by any other person without the  
written consent of the vendor and Stantec; and, 4) Stantec accepted no responsibility for damages  
suffered by any third party as a result of a decision made or actions taken based on the Stantec  
report.  
[110] Notably, even though Stantec knew that the purpose of its Phase I ESA was to facilitate  
the sale of the property and knew who the buyer was, the court concluded that Stantec was entitled  
to rely on disclaimer clause, pursuant to Stantec’s agreement with its client.  
[111] NRH asks the court to consider Terpstra Farms Ltd. et al v. Argue & Associates et al, 2010  
ONSC 471, as providing support for a finding that LEX owes a duty of care to NRH.  
[112] Terpstra is an endorsement made by the trial judge respecting the legal issues to be  
determined prior to the delivery of closing addresses to the jury. The claim related to damages for  
negligent construction of a barn. However, the endorsement makes no mention of a disclaimer  
12 Stantec, at paras. 3-4.  
21  
clause, the impact of which is a key issue on this motion. I conclude that Terpstra is of little  
assistance on this motion.  
[113] NRH submits that it is important to determine what LEX knew when it prepared the LEX  
Report. NRH submits that Wolverine is distinguishable from the case before this court in that,  
unlike in Wolverine, in this case, LEX was aware that the LEX report was prepared for the purposes  
of a sale and knew or ought to have known that its findings would be relied upon by a third party.  
I do not accept those submissions.  
[114] Firstly, the evidence does not clearly establish that LEX knew why the Phase I ESA was  
required; neither reason given in the LEX Report for the Phase I ESA was accurate. More  
importantly, the evidence clearly shows that LEX was not aware that NRH was relying on the LEX  
Report and, as it turns out, NRH was not able to rely on the LEX Report for the RSC it required  
because, according to EXP, the LEX Report was not prepared in accordance with the appropriate  
standards. Finally, even if it could be assumed that LEX knew that the LEX Report was being used  
for the sale of the Lands as was the case in Stantec that would not preclude LEX from being  
able to limit its liability.  
[115] NRH asks this court to consider and apply the principles found in Transamerica Life  
Insurance Co. of Canada v. Hutton, 2000 CarswellOnt 2090 (SCJ).  
[116] Briefly, the facts in Transamerica relate to a claim brought on the basis of fraudulent  
misrepresentations respecting the income and market value of the mortgaged property, on which  
the plaintiff/lender relied. The defendant sought to rely on a disclaimer clause. The court held that  
the clause was insufficient to “absolve’ the defendant from a duty of care. In reaching that  
conclusion, the court noted that the defendant not only knew that its report was to be provided to  
the lender for the purpose of financing, the defendant’s cover letter was addressed to the lender.  
The court found that its facts were distinguishable from those in Wolverine in that Transamerica  
was not, in essence a third partybut was, in fact, a party for whom the report was intended.  
[117] I find that the facts in Transamerica are distinguishable from the facts in this case.  
[118] LEX asks the court to consider and apply Kokanee Mortgage MIC Ltd. v. Burrell, 2018  
BCCA 151 (), a case involving a claim brought by a lender against an appraiser for  
negligent misrepresentation.  
[119] The appraisers moved successfully for summary judgment to dismiss that action on the  
basis that the appraisal was prepared for the borrower, not the lender, and that the disclaimer clause  
in the appraisal excluded liability to anyone else without the appraiser’s consent.  
[120] In Kokanee, as in this case, the consultant’s report came into the possession of the plaintiff  
without the consultant’s knowledge or consent. In part, the court’s determination of whether the  
disclaimer clause excluded liability was based on an assessment of whether the plaintiff reasonably  
relied on the appraisal, in the face of the disclaimer clause. At paragraph 38, the court states:  
[38] At this point, the case under appeal falls within the “more typical situation in  
22  
which the recipient of the information decides to rely on it rather than going to the  
trouble or expense of obtaining it elsewhere”. Mr. Carson was fully aware of the  
disclaimer. He chose to rely on the appraisal regardless, based on the fact that its  
intended use was for first or second mortgage financing. He was not captive to the  
opinion expressed by Coast Appraisal and could have chosen to commission his  
own appraisal. Alternatively, if he wanted to rely on Mr. Burrell’s appraisal, he  
could have respected the terms of the disclaimer and sought consent. He did not do  
so. Mr. Carson appears to have made a decision based on business efficacy, rather  
than seeking alternative information or paying for the right to rely on the opinion  
at hand. To treat Kokanee’s reliance as reasonable in these circumstances would be  
to permit Kokanee, through its otherwise reasonable reliance, unilaterally to impose  
a practically non-disclaimable duty on Coast Appraisal.  
[121] Without adopting the analysis undertaken by the Court in Kokanee, the court’s comments  
above are consistent with key aspects of the evidence before the court on this motion. Among other  
things, there is no evidence that, had it chosen to do so, NRH was prevented from commissioning  
its own Phase I ESA prior to closing or asking LEX for permission to rely on the LEX Report. The  
APS not only did not require the Church to obtain a Phase I ESA but, by its terms, it permitted  
NRH to conduct its own investigation of the Lands, which NRH did, when it retained EXP to  
undertake a geotechnical investigation of the Lands.  
Dismissal of the Church’s Crossclaim  
[122] The Church’s crossclaim against LEX is for contribution and indemnity. Pursuant to s. 2.  
of the Negligence Act, R.S.O. 1990, c. N.1, a claim for contribution and indemnity may be made  
“from any other tortfeasor who is, or would if sued have been, liable in respect of the damage..  
[123] If LEX is not found liable to NRH, then the Church’s crossclaim against LEX must also  
fail: see Dominion Chain Co. v. Eastern Construction Co., [1978] 2 S.C.R. 1346; see also, Hiram  
Walker & Sons Ltd. v. Shaw, Stone & Webster Canada L.P., 2011 ONSC 6869 at paras.44 and 63-  
65; and Nadeau v. CBRE Limited, 2020 ONSC 1150 () at paras. 84-85.  
Analysis and Conclusions  
[124] While both parties have identified evidence that was not before the court on this motion,  
each had recourse available to them to obtain the “missing” evidence either through examination  
of witnesses and/or motions to obtain production of documents. On this, or any, motion for  
summary judgment, the court is entitled to assume that the parties have put their best foot forward  
and that the evidence led on the motion will be the evidence at trial.  
[125] LEX submits that the court should draw an adverse inference from NRH’s refusal to  
produce its lawyers file or reporting letter on NRH’s purchase of the Lands, to which NRH submits  
that LEX could have brought a motion for those records. Both positions have merit. While it might  
be appropriate to infer that NRH’s refusal to produce even its lawyer’s reporting letter on the  
purchase, would allow me to infer that the evidence in that file would not be helpful to NRH, I  
find that I need not do so.  
23  
[126] The admissions and undisputed facts allow me to confidently conclude that there is no  
genuine issue requiring a trial as concerns NRH’s claim against LEX. I find that this process allows  
the court to fairly and justly adjudicate that issue and is a timely, affordable, and proportionate  
way to do so.  
[127] The evidence before the court on this motion, and the application of the law to that  
evidence, is sufficient to permit the court to answer the following issues identified by NRH, which  
are determinative of the motion:  
1.  
Has LEX established that there is no genuine issue requiring a trial?  
Answer: Yes.  
2.  
Did LEX provide sufficient evidence to allowtheCourtto makethenecessaryfindings of  
fact?  
Answer: Yes.  
3.  
Given the other facts and circumstances of this case known to date, does the  
Disclaimer Clauseexcludethe imposition of adutyof carebyLEXto NRH?  
Answer: Yes.  
Disposition: Motion Granted  
[128] For the reasons set out above, LEX’s motion for summary judgment is granted and the  
action is dismissed as against it. Also, as explained above, having dismissed the action as against  
LEX, the Church’s crossclaim against LEX is also dismissed.  
Costs  
[129] As the successful party on this motion, it is reasonable for LEX to expect to be awarded its  
costs of this motion and the action.  
[130] The parties have delivered their Costs Outlines, which will not be read by the court until  
the release of this decision.  
[131] I would urge the parties to attempt to reach an agreement on costs. However, if they are  
unable to do so, then costs submissions shall be made as follows:  
1.  
Within 21 days of the date of the release of this decision, LEX shall serve  
its written costs submissions, not to exceed three pages, double-spaced,  
together with a draft bill of costs, and copies of any relevant offers to settle  
upon NRH and, if LEX seeks any costs from the Church, it shall also serve  
the Church. LEX’s costs submissions are to be submitted to me by filing  
them, via email, through the Trial Co-ordinator.  
24  
2.  
3.  
Within 14 days of the service upon it of LEX’s costs submissions, NRH,  
and, if applicable, the Church, shall serve and file their responding costs  
submissions, consisting of no more than three pages, double-spaced,  
together with their draft bill of costs, and copies of any relevant offers to  
settle.  
If LEX seeks to deliver reply submissions, it may do so within 7 days of  
service upon it of the costs submissions served by NRH and, if applicable,  
by the Church. Reply submissions shall not exceed one page in length.  
[132] If no submissions are received within 35 days of the date of the release of these reasons,  
the parties shall be deemed to have resolved the issue of the costs and costs will not be determined  
by the court.  
L. Sheard J.  
Date: June 7, 2022  
CITATION: Niagara Regional Housing v. Trustees of  
Carleton Untied Church, et al., 2022 ONSC 3413  
COURT FILE NO.: CV-18-64583  
DATE: 20220607  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
B E T W E E N:  
Niagara Regional Housing  
Plaintiff  
- and -  
Trustees of Carleton United Church and Bonnie  
Driver and Harland Young and Ross McCarthy and  
Ray Marshall and Jane Doe and Bill Leighfield and  
Carleton United Church and the United Church of  
Canada L’Eglise Unie Du Canada and Niagara  
Presbytery of the United Church of Canada and  
Hamilton Conference of the United Church of  
Canada and LEX Scientific Inc.  
Defendants  
REASONS FOR JUDGMENT  
L. Sheard J.  
Released:  
June 7, 2022  



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