CITATION: Trifield Construction Co. Ltd. v. HC Matcon, 2013 ONSC 6514
DIVISIONAL COURT FILE NO.: 595/12
DATE: 20131018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
TRIFIELD CONSTRUCTION COMPANY LTD.
Plaintiff
(Appellant)
– and –
HC MATCON INC., THE TORONTO TRANSIT COMMISSION and YORK UNIVERSITY
Defendants
(Respondents)
S. Bellissimo, for the Plaintiff (Appellant)
Robert J. Kennaley, for the Defendant (Respondent), HC Matcon Inc.
HEARD at Toronto: October 18, 2013
PARDU J. (orally)
[1] HC Matcon Inc. moves to quash an appeal to the Divisional Court by Trifield Construction Company Ltd. on the ground that the appellant’s appeal from an interlocutory order is forbidden by s.71 of the Construction Lien Act.
[2] The appellant takes the position that it is appealing from a final order. HC Matcon Inc. delivered a statement of defence and counterclaim. The work which was the subject of the counterclaim was not yet complete and for that reason the amount of the counterclaim was not specified.
[3] The parties attended at a pre-trial meeting and counsel for Matcon was asked about the amount of the claim. The affidavit evidence before me indicates that counsel indicated it was at least the amount of the plaintiff’s claim, which was $26,572.54. The Master noted in her procedure book that the counterclaim was capped at this amount. At this stage, no evidence had been heard and no affidavit of documents had been exchanged.
[4] Counsel for the defendant brought a motion returnable at the next pre-trial to vary this note on the ground that it arose from a misunderstanding. The Master agreed and noted in her procedure book that the counterclaim was not to exceed $364,447.73. It is from the second note that the plaintiff appeals.
[5] I am of the view that the second note was an interlocutory step. The Construction Lien Act provides that on a reference a Master has all the jurisdiction powers and authority of the Court to try and completely dispose of all matters and questions arising in connection with the action, including the giving of leave to amend any pleading. (see Construction Lien Act, s.58(4)).
[6] The Rules of Civil Procedure provide that the Master`s directions on the reference may be varied or supplemented during the course of the reference. (see Rule 55.02(4) and 55.02(11)).
[7] A report of a Master has no effect until it has been confirmed. Here, the Master has not issued a report or an interim report. The defendant could, in any event, amend its counterclaim with leave at any stage of the action. (see Rule 26.01, Ravenda Homes Ltd. v. 1372708 Ont. Inc., 2010 ONSC 6338 (Div. Ct.), Gryphon Building Solutions Inc. v. Danforth Estates Management Inc., [2009] O.J. No. 2910 (Ont. Div. Ct.)).
[8] The merits of the case remain to be determined. This order was clearly interlocutory. An appeal does not lie to the Divisional Court in an unconfirmed report of a Master in these circumstances. (see Gryphon Building Solutions Inc. v. Danforth Estates Management Inc., supra; McGowan Construction of Ravenna Ltd. v. Cedar Highland Ski Club, [2004] O.J. No. 5480).
[9] The motion is allowed. The appeal is quashed.
COSTS
[10] I have endorsed the Record, “For reasons delivered orally, the appeal is quashed. Costs to the moving party. Amount to be fixed following written submissions not to exceed 3 pages in length due from moving party within 7 days and from respondent on motion within 7 days thereafter.”
PARDU J.
Date of Reasons for Judgment: October 18, 2013
Date of Release: October 30, 2013
CITATION: Trifield Construction Co. Ltd. v. HC Matcon, 2013 ONSC 6514
DIVISIONAL COURT FILE NO.: 595/12
DATE: 20131018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU J.
BETWEEN:
TRIFIELD CONSTRUCTION COMPANY LTD.
Plaintiff
(Appellant)
– and –
HC MATCON INC., THE TORONTO TRANSIT COMMISSION and YORK UNIVERSITY
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: October 18, 2013
Date of Release: October 30, 2013