Dibella Construction Ltd. v. Jon Cloud

Citation: Dibella Construction Ltd., v. Jon Cloud 2016 ONSC 4300

Court File No.: DC-16-929-00

Date: 2016-06-29

Ontario Superior Court of Justice

Between:

Dibella Construction Ltd. Plaintiff/Respondent

– and –

Jon Cloud Defendant/Appellant

Counsel:

Jason Botelho, for the Plaintiff/Respondent

Rolf M. Piehler, for the Defendant/Appellant

Heard: June 21, 2016

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The motions before me relate to the appeal of a decision released by McIsaac J. on December 3, 2015, and his subsequent costs endorsement dated February 10, 2016. McIsaac J. awarded judgment in favour of the plaintiff in the amount of $7,245.00. Taking into account the plaintiff’s settlement offer, McIsaac J. ordered costs in favour of the plaintiff in the amount of $15,000.

[2] The defendant filed its Notice of Appeal on February 25, 2016.

[3] The plaintiff brought a motion to quash the appeal since it was not served within 15 days of the release of the initial reasons for judgment, as required by s.71(2) of the Construction Lien Act, R.S.O. 1990, c. C.30, which provides:

A party wishing to appeal shall file and serve a notice of appeal within fifteen days of the date of the judgment or order, but the time for filing or serving the notice of appeal may be extended by the written consent of all parties, or by a single judge of the Divisional Court where an appropriate case is made out for doing so.

[4] The defendant has brought a motion for an order extending the time for service of the notice of appeal to February 25, 2016.

Position of the Parties

[5] The plaintiff’s first position is that the December 3, 2015 judgment contained a “clear error” regarding the amount of the judgment that he attempted to address in his costs submissions. He hoped that McIsaac J. would amend his reasons in response to the costs submissions to clarify the amount he intended to award.

[6] The error identified relates to para. 5 of the reasons for judgment. This paragraph states that since the contract had been performed to 90% completion “this would trigger a reduction of $655.00 resulting in a calculation in favour of the plaintiff in the amount of $6,590.00”. Notwithstanding that finding, McIsaac J. granted judgment in the amount of $7,245.56, which was the full amount claimed by the plaintiff.

[7] While counsel for the defendant submits that this was an error (and maybe it was), he did not move to amend the order under Rule 59.06(1) of the Rules of Civil Procedure, which permits a party to move to amend an order that contains an “accidental slip or omission”. Rule 59.06(1) is designed to permit the court to correct such errors without requiring a party to appeal the judgment. “After the judgment has been entered, the court has jurisdiction to correct a slip in the formal judgment or an error in expressing the manifest intent of the court.” Precision Fine Papers Inc. v. Durkin, 2008 12498 (ON SC), at para. 6. Generally such motions must be brought as soon as counsel becomes aware of the error.

[8] Counsel for the defendant also took the position in his costs submissions that the plaintiff “did not conduct the trial as a construction lien trial” because the plaintiff “did not lead evidence or make submissions to prove the lien.” As such, the defendant argued, the matter should have proceeded to Small Claims Court, and costs should be reduced accordingly. This argument was considered and rejected in McIssac J.’s written costs endorsement.

[9] The defendant’s affidavit on this motion states that he “expected” McIsaac J. “to amend his judgment or reasons upon receiving my costs submissions”. I do not know why the defendant would have such an expectation. Costs submissions are not an appeal or a motion for reconsideration, nor did the defendant’s costs submissions request McIsaac J. to amend his judgment or his reasons.

[10] The defendant takes the position that the costs decision is a “substantive part of the Judgment”, and that the “monetary jurisdiction of the Court and the cost consequences” are substantive issues. He claims that he formed an intention to appeal within the relevant time period and “provided instructions” to his lawyer on December 11, 2015. He does not indicate what those instructions were, nor is there any explanation from his counsel as to why a notice of appeal was not served immediately after December 11, 2015.

[11] The plaintiff takes the position that there is inadequate evidence that the defendant intended to appeal during the relevant time period. No intention to appeal was ever conveyed to counsel for the plaintiff until February 24, 2016. The plaintiff takes the position that the defendant is really just trying to appeal the costs endorsement without having to seek leave to appeal as required by s.133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Analysis

[12] There is no dispute that a costs judgment is a separate, collateral determination rather than part of the main merits proceeding, and the time for the appeal of the merits judgment runs from the date it is released and not the date that the costs judgment is released (Byers v. Pentex Print Masters Industries Inc. (2003), 2003 42272 (ON CA), 62 O.R. (3d) 647 (C.A.)). While a motion under Rule 59.06(1) might extend the time for appealing the merits judgment, costs submissions do not (Byers at paras 41 - 43). The fact that costs submissions invariably make some reference to the substantive merits of the case does not make a costs decision a substantive part of the judgment.

[13] Under s. 71(2) of the Construction Lien Act the applicant seeking an extension of time to file an appeal must show:

a) That there existed a bona fide intention to appeal within the 15 day period;

b) An explanation for the delay;

c) That there is no prejudice to the other party;

d) That the proposed appeal has merit.

[14] These criteria are subject to the broader principle that an extension should be granted if the justice of the case requires it. (Byers, at para. 46; Bob Seabrook Construction Ltd. v. Kenaidan Contracting Ltd., 2008 CarswellOnt 6370 at para. 8).

[15] I agree with the plaintiff that there is inadequate evidence of an intention to appeal and no real explanation as to why the appeal was not even mentioned to the plaintiff’s lawyer until after the costs decision was released. The fact that the defendant had discussions with his lawyer about grounds for appeal does not demonstrate an intention to appeal (Bob Seabrook Construction, at para. 9). I agree with the defendant that it appears that it is the costs endorsement that is the real focus and catalyst of the appeal.

Conclusion

[16] Based on the foregoing, the plaintiff’s motion to quash the appeal is allowed and the defendant’s motion for an extension of time to appeal is dismissed. This is without prejudice to the right of the defendant to seek leave to appeal from the costs decision dated February 10, 2016, and the defendant is granted fifteen days from the release of this decision to file a Notice of Motion for Leave to Appeal the costs decision.

[17] The plaintiff is presumptively entitled to costs for this motion. If the parties cannot agree on costs the plaintiff may provide written submissions of no more than 3 pages plus cost outline within 30 days of this decision, and the defendant may file responding submissions on the same terms 15 days thereafter.

Justice R.E. Charney

Released: June 29, 2016

CITATION: Dibella Construction Ltd., v. Jon Cloud 2016 ONSC 4300

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIBELLA CONSTRUCTION LTD. Plaintiff/Respondent

– and –

JON CLOUD Defendant/Appellant

REASONS FOR DECISION

Justice R.E. Charney

Released: June 29, 2016