CITATION: Terradyne Construction Management Ltd. v. 6832458 Canada Inc., 2015 ONSC 1495
DIVISIONAL COURT FILE NO.: 252/14 DATE: 20150305
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND M. EDWARDS JJ.
BETWEEN:
TERRADYNE CONSTRUCTION MANAGEMENT LTD.
Plaintiff
(Appellant)
– and –
6832458 CANADA INC., DANIEL GAUDREAU and ANDRE RACINE
Defendants
(Respondents)
Kenneth C. MacDonald, for the Plaintiff (Appellant)
Christopher J. Cosgriffe and
Ryan R. Watkins, for the Defendants (Respondents)
HEARD at Toronto: March 5, 2015
SACHS J. (ORALLY)
[1] The appellant raises two principle issues on this appeal:
(i) that the motion judge erred when he found that the funds received by 6832458 Canada Inc. (“683”) from Dangau Inc. were not imposed with an “owners” trust under s. 7 of the Construction Lien Act (“CLA”); and
(ii) that the motion judge erred when he found that the appellant had not established a breach of trust with respect to the funds received by 683 from the National Bank.
[2] The respondent cross-appealed with respect to the motion judge’s disposition on costs. On the first issue, we agree that the question of whether the Dangau funds were imposed with an owner’s trust under s. 7(1) of the CLA is a question of mixed fact and law. What standard of review applies to such questions depends on where the decision at issue falls on a spectrum. In other words, is there an extricable legal principle that was misconstrued by the motion judge? If it can be established that there is, less deference is owed.
[3] In this case the motion judge correctly stated and applied the applicable law, which is that “There is an initial onus on the plaintiff to prove the existence of a statutory trust …” (see para. 39 of the motion judge’s decision and the cites contained therein). The motion judge then looked at the facts before him and decided that the appellant/plaintiff had not satisfied its initial onus with respect to the Dangau funds. The question that we must determine is whether the motion judge made an overriding and palpable error when he examined the facts in order to determine whether the onus was satisfied.
[4] We heard nothing before us that would cause us to conclude that the motion judge misconstrued or ignored any of the relevant facts in relation to this question. Specifically, he knew what the purpose of 683 was and he knew that some of the Dangau funds were used to pay for improvements. In our view, the appellant has not established that the motion judge made an overriding and palpable error when he considered the first issue.
[5] With respect to the second issue raised by the appellant, the appellant’s argument on this issue was not put before the motion judge. On the summary judgment motion the respondents took the position that the appellant had not brought forward any evidence to establish that they had committed a breach of trust with respect to the National Bank Funds. They also provided an accounting of what they had done with those funds. On the appeal, for the first time, appellant’s counsel attempted to point to specific transactions that it asserts did constitute a breach of trust in relation to the National Bank Funds. It is trite law that each party has an obligation to put its best foot forward on a summary judgment motion. An appeal is not the forum to make the factual arguments that were never made before the motion judge.
[6] On the question of costs, costs decisions are highly discretionary decisions that should rarely be interfered with by an appellate court. In this case we see no reason to interfere with the motion judge’s exercise of his discretion with respect to the costs of the motion before him.
[7] For these reasons, the appeal and cross-appeal are dismissed.
COSTS
[8] I have endorsed the Appeal Book, “This appeal and cross-appeal is dismissed for reasons given orally by Sachs J. The respondents seek their costs of the appeal and cross-appeal fixed in the amount of $13,600. We agree that the amounts billed are reasonable (especially given the appellant’s Bill of Costs). However, this amount must be reduced to reflect the fact that the respondents lost the cross-appeal. Therefore, we fix their costs in the total amount of $10,000, inclusive of disbursements and HST. We see no merit to the appellant’s assertion that this case raised a novel issue with some public interest component that would justify an order that there be no costs.”
___________________________ SACHS J.
HAMBLY J.
M. EDWARDS J.
Date of Reasons for Judgment: March 5, 2015
Date of Release: March 18, 2015
CITATION: Terradyne Construction Management Ltd. v. 6832458 Canada Inc., 2015 ONSC 1495
DIVISIONAL COURT FILE NO.: 252/14 DATE: 20150305
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HAMBLY AND M. EDWARDS JJ.
BETWEEN:
TERRADYNE CONSTRUCTION MANAGEMENT LTD.
Plaintiff
(Appellant)
– and –
6832458 CANADA INC., DANIEL GAUDREAU and ANDRE RACINE
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 5, 2015
Date of Release: March 18, 2015