CITATION: Parma General Contractors v. Pulcini 2016 ONSC 5193
DIVISIONAL COURT FILE NO.: 003/16
DATE: 20160816
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
In the matter of the Construction Lien Act, R.S.O. 1990, c. C.30
RE: PARMA GENERAL CONTRACTORS INC. v. ROMINA PULCINI and others
BEFORE: NORDHEIMER J.
COUNSEL: O. S. Morozova, for the moving party/plaintiff
J. C. Vieni, for the responding parties/defendants
HEARD at Toronto: August 16, 2016
E N D O R S E M E N T
[1] The moving party/plaintiff seeks a number of orders but the relief can, in my view, be summarized under two general headings. One is whether the plaintiff should be granted an extension of time for filing its appeal from the order of C. Brown J. dated October 13, 2015 and the other is whether, if an extension of time is granted, the defendants should be required to repay into court the monies that they obtained out of court pursuant to the report of Master Wiebe dated January 28, 2015. At the conclusion of the argument, I dismissed the motion with reasons to follow. I now provide those reasons.
[2] There were three construction lien actions that were referred to the Master for trial. After a trial that occurred on various dates in 2013 and 2014, the Master issued his Final Report on January 28, 2015. The report provided, among other things, that the plaintiff would have judgment for certain claims. However, the Master declined to order that the judgment be satisfied out of monies that had been paid into court. Rather, he directed that those monies be paid out to the defendant, MJR.
[3] The plaintiff brought a motion to oppose confirmation of the report. That motion was argued in August 2015. By way of endorsement dated October 13, 2015, the motions judge dismissed the motion to oppose confirmation of the report. There was then an exchange of correspondence between counsel to settle the order of the motions judge. Counsel for the plaintiff provided some comments on the draft order after which counsel for the defendants made amendments to the order and then arranged to have it signed and entered. Counsel for the plaintiff complains that counsel for the defendants did this without their agreement and without allowing them to see a further draft of the order. While it does appear that counsel for the defendants may have presumed he could proceed to have the order entered without further approval, it is of some consequence to this issue that counsel for the plaintiff does not point to any error in the order, other than the fact that the order refers to the three actions involved whereas the formal endorsement of the motions judge only referred to one of the three actions. This is not an issue that counsel for the plaintiff raised at the time and is, in any event, of no moment as I shall explain below.
[4] The plaintiff then sought to appeal the order of the motions judge. Counsel for the plaintiff (not counsel on this motion) mistakenly thought the appeal was to the Court of Appeal. He subsequently came to realize that the appeal lay to the Divisional Court. Also around this time, counsel for the plaintiff became distracted due to some personal issues. Consequently, it was not until November 27, 2015 (about a month after the time to appeal had expired) that counsel for the plaintiff obtained a date from the Divisional Court for this motion for an extension of time. For various reasons, the motion only came before me for hearing on August 16, 2016. Prior to any appeal being filed, counsel for the defendants had arranged for the monies in court to be paid out to MJR as provided for in the report of the Master.
[5] The plaintiff raises various arguments in favour of its position including that the motions judge did not formally confirm the report when she dismissed the plaintiff’s motion to oppose its confirmation. Consequently, the plaintiff contends that the report has never been confirmed and therefore no steps ought to have been taken under it. I reject that contention. While it may be that the motions judge ought to have formally confirmed the report as part of her decision, the reality is that confirmation is implicit in the motion judge’s rejection of the motion to oppose. In my view, r. 54.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, properly interpreted, simply suspends the fifteen day confirmation period until any motion to oppose confirmation of the report is filed and determined. Once any such motion is dismissed, the suspension of the fifteen day period is automatically lifted and the report is then confirmed by operation of the rule. No other interpretation would be consistent with the practical realities or with common sense. Indeed, counsel for the plaintiff acknowledged that, if her position was accepted, the Master’s report would, in this case, remain unconfirmed for all time. The plaintiff’s contention is fundamentally inconsistent with the general principle underlying the Rules of Civil Procedure whereby the rules are to be liberally construed “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: see r. 1.04(1).
[6] Perhaps counsel for the defendants ought to have formally confirmed that he could proceed to take out the order after he had plaintiff counsel’s comments on the draft, but the order was taken out and, as I earlier noted, with the exception of the other actions, the plaintiff does not point to any error in it. In terms of the other actions, it is clear that the Master’s report covered all three actions and that the opposition of the confirmation of the report covered all three actions. It was appropriate, therefore, for the formal order dismissing the opposition to refer to all three actions, even if the endorsement of the motions judge only contained one of the three action numbers. It follows that, absent an appeal, and any stay of the directions contained in the report, the defendants were entitled to act under it and, in particular, obtain the monies out of court.
[7] The real issue is whether an extension of time to appeal ought to be granted to the plaintiff. The test for granting an extension of time is set out in a number of cases including Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.) where Gillese J.A. said, at para. 16:
Those factors are:
(1) whether the (cross) appellant formed an intention to appeal within the relevant period;
(2) the length of the delay and explanation for the delay;
(3) any prejudice to the respondent;
(4) the merits of the appeal; and
(5) whether the "justice of the case" requires it.
[8] I accept that the plaintiff had an intention to appeal and I accept that there is an explanation for the delay. However, there is an element of prejudice to the defendants if an extension is granted in two respects. One is the lack of finality of a matter that has been ongoing since at least 2008. The other is the possibility that MJR might be required to repay the monies into court. On that latter point, I am advised that MJR is no longer an active business and that it used the monies it obtained out of court to pay its liabilities. Of more importance, however, is the issue of the merits of the appeal which I view as wanting. The plaintiff is essentially attacking findings of fact made by the Master. Those attacks were carefully considered by the motions judge and were all found to be lacking. There appears to be little chance of success on yet a further appeal of those factual findings.
[9] Lastly, the justice of the case does not favour the plaintiff for both of those same reasons – the lack of likely success on the appeal and the continuation of a proceeding that is eight or more years old.
[10] I therefore dismiss the motion for an extension of time and for the other related relief. I fix the costs of the motion in the amount of $10,000 to be paid by the plaintiff to the defendants within thirty days. In that regard, I will say that I view the requested costs that both parties put at over $20,000 to be excessive for a motion of this nature.
NORDHEIMER J.
DATE: August 16, 2016