COURT FILE NO.: CV-22-00060577-0000 DATE: 20230217
ONTARIO SUPERIOR COURT OF JUSTICE
In the Matter of the Construction Act, R.S.O. 1990, c.C.30, as amended
BETWEEN:
Arcamm Electrical Services Ltd. Plaintiff/Moving Party
– and –
Avison Young Real Estate Management Services LP and 4342 Queen St Niagara Holdings Inc. Defendants/Responding Parties
Counsel: Michael C. Mazzuca, for Plaintiff/Moving Party Frank Costantini, for Defendant/Responding Party, Avison Young Real Estate Management Services LP James R. Smith, for Defendant/Responding Party, 4342 Queen St Niagara Holdings Inc.
HEARD: January 12, 2023
REASONS FOR JUDGMENT ON PLAINTIFF’S SUMMARY JUDGMENT MOTION
Justice L. Sheard
Overview
[1] On June 8, 2021, a sudden electrical failure involving the high-voltage electrical system at 4342 Queen St., Niagara Falls, ON (the “Property”) caused a complete power outage in the six-storey, 13,800 square metre, commercial building.
[2] The Property is registered in the name of 4342 Queen St. Niagara Holdings Inc. (“Queen”). Queen describes the Property as a federal building that requires power 24 hours per day, seven days per week, with some of its 10 commercial tenants designated as essential service providers during the Covid-19 pandemic.
[3] Pursuant to the Real Estate Management Services Agreement between them (the “REMSA”), Avison Young Real Estate Management Services LP (“Avison”, defined therein as “Agent”) contracted with Queen (defined therein as “Owner”) was appointed as “the sole and exclusive management and operating agent for the Property” with the “power and authority to manage and operate the Property”. Avison was authorized to negotiate contracts with third parties if within the “Approved Budget” and, with some exceptions, was required to seek Queen’s approval for all extraordinary expenditures. One such exception related to expenditures for emergency repairs, for which Avison did not need to seek Queen’s approval, if the expenditures were necessary to protect the Property “from immediate risk of danger or to maintain services Owner is required to provide”.
[4] It is undisputed that the loss of power to the Property on June 8, 2021, constituted an “emergency” and that electricity was a service that Queen, the Owner, was required to provide to its tenants.
[5] Exercising its authority under the REMSA, Avison hired the plaintiff, Arcamm Electrical Services Ltd. (“Arcamm”), to do what was needed to restore power to the Property on an emergency basis, and to provide any other services arising out of or related to the electrical failure.
[6] Arcamm is a commercial electrical contractor, in business for 34 years, and experienced with transformer replacement work.
[7] Within less than 24 hours of Avison’s request, Arcamm had sourced and installed two temporary generators and power was restored to the Property. The monthly cost associated with running the temporary generators, including rental fee and fuel, was approximately $255,000.
[8] Arcamm was also asked to submit a quote for the replacement of the electrical Switch Gear damaged on June 8, 2021. On July 22, 2021, Avison and Queen approved its quote and Arcamm ordered the replacement Switch Gear. Work to replace the Switch Gear began in late August 2021. On September 13, 2021, Arcamm’s work was inspected and certified by the Electrical Safety Authority (the “ESA”).
[9] On September 9, 2021, the Property’s existing transformers were tested and failed to meet the requisite standard for re-energization. Avison then asked Arcamm to submit a quote for the supply of replacement transformers. Arcamm did so on September 17, 2021, and Avison and Queen approved the quote.
[10] On October 30, 2021, Arcamm removed the existing transformers and installed the replacement transformers. Arcamm also paid the charge imposed by Niagara Peninsula Energy Inc. (“NPEI”) to reconnect this high-voltage equipment to the electrical grid.
[11] On November 1, 2021, the ESA conducted a final inspection and certified that Arcamm’s work was completed in compliance with the requisite Codes and Regulations, thereby allowing the Property to re-connect to the power grid. Arcamm subsequently removed the two temporary generators that had been providing the Property with power.
The Motions before the Court
[12] There were two motions for summary judgment (“SJM”) returnable before me on January 12, 2023.
(i) Arcamm’s SJM as against Avison and Queen in respect of the unpaid invoices it submitted for the work described above.
[13] Schedule “C” of Arcamm’s factum is a statement of its unpaid invoices and accrued interest to November 16, 2022 of $265,282.63, for a total amount then owing of $1,250,034.01. Schedule “C” and Arcamm’s Statement to Queen dated 11/16/2022 are attached to these Reasons for Judgment as Appendix “A”.
[14] Both Avison and Queen deny liability to Arcamm. Their positions are set out later in these reasons.
(ii) Avison’s SJM as against Queen for a determination that under the REMSA, Avison was entitled to be indemnified and held harmless from Arcamm’s claim.
[15] In Avison’s SJM, it sought an order that under the REMSA, Queen is obligated to indemnify and hold Avison harmless from Arcamm’s claim and from the costs incurred by Avison to defend Arcamm’s claim. Concerned that the court might grant judgment against it on Arcamm’s SJM, Avison returned its SJM on the same day as Arcamm’s SJM.
[16] Based on the numbering used in Caselines, there are in excess of 3100 pages filed on the two SJMs. In the Motions Confirmation Forms, counsel advised that it would take 300 minutes to argue both these motions.
[17] That time estimate was entirely unrealistic.
[18] At the outset of oral argument on Arcamm’s SJM, it became clear that Arcamm’s SJM alone, would consume most of the day. In fact, the hearing began at approximately 10 a.m. and concluded at approximately 5:22 p.m.
[19] In oral submissions on its SJM, Arcamm agreed that, pending a final determination of Avison’s SJM, Arcamm would not seek to enforce any judgment that it might obtain against Avison on Arcamm’s SJM. On that basis, and on consent, Avison’s SJM was adjourned to February 1, 2023, for a one-day hearing before me. As there was no need for Arcamm to participate in the determination of the contractual obligations under the REMSA as between Queen and Avison, Arcamm was not required to attend at the hearing of Avison’s SJM. Avison’s SJM proceeded on February 1, 2023, and continued on February 10, 2023, for a second day. Reasons on Avison’s SJM will be released separately.
[20] Although the hearing of the two SJMs ultimately proceeded separately, the materials had been filed with the understanding that both SJMs would be heard together. Therefore, for the purposes of my decisions on both SJMs, I treat the materials filed as comprising one record.
Arcamm’s Motion for Summary Judgment
[21] Arcamm’s SJM was heard on January 12, 2023.
[22] Arcamm’s SJM was brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Arcamm also relied upon Section 50 (2) of the Act, described as the “prompt payment” provisions.
[23] For the reasons more fully set out below, I find that prompt payment provisions of the Act do not apply. Briefly, I find that Arcamm’s invoices are not “proper invoices” as defined under s. 6.1 of the Act. As a result of that finding, in these reasons, I have considered only whether summary judgment can and should be granted pursuant to r. 20.
Positions of the Parties
[24] Arcamm’s position is that it was retained by Queen, through Avison, to restore electrical power to the Property on a temporary basis, until permanent high-voltage transformers could be re-energized. Arcamm did supply temporary generators which supplied emergency electrical energy to the Property throughout the months during which the existing transformers were unusable. Queen has not fully paid Arcamm for the temporary generators or for the fuel needed to operate them.
[25] As a result of the labour and materials provided by Arcamm to Queen, the Property and, in turn, Queen’s tenants, were supplied with round-the-clock electrical power within days of the original power outage of June 8, 2021, until power was permanently restored on or about November 1, 2021.
[26] When it was determined that the existing transformers could not be re-energized, Arcamm was invited to submit a quote for the supply and installation of replacement transformers. Queen accepted Arcamm’s quote, and the work was completed by Arcamm. Arcamm also arranged for and paid to re-connect the replacement transformers to the electricity grid.
[27] It is undisputed that Queen submitted proofs of loss to its insurer, Aviva Insurance Company of Canada (“Aviva”), which initially approved Queen’s proofs of loss and provided Queen with funds from which to pay Arcamm’s invoices. However, Aviva later denied coverage to Queen, which, in turn, stopped paying Arcamm. Arcamm submits further that, despite knowing that Aviva was denying coverage, Queen continued to request and to receive services and materials from Arcamm, thereby ensuring that Queen had an uninterrupted supply of electricity to the Property and was able to meet its obligations to its tenants, while not paying Arcamm.
Queen’s Position
(a) Leave is required under the Act and should be denied
[28] Queen submitted at the outset that the SJMs brought by Arcamm and Avison ought not to proceed on the basis that the Act requires that leave to bring an interlocutory proceeding be sought, and that the test for granting leave could not be met.
(b) Other related claims exist that create a risk of inconsistent findings
[29] Queen also asserts that Arcamm’s SJM ought not to be proceed because, in part, there are other proceedings involving other parties, all related to the same transactions and that to grant summary judgment in this matter would risk inconsistent findings. The record before the court includes copies of other actions commenced in relation to the power outage on the Property.
(i) Aviva’s subrogated claim
[30] One such action is the subrogated claim brought by Aviva on July 29, 2022, which issued a claim in Queen’s name as against Niagara Peninsula Energy Inc., Arcamm, Horizon High Voltage Services Inc., Avison’s four various legal entities and Power Engineering Services Ltd. (the “Aviva Subrogated Action”) [^1].
[31] In the Aviva Subrogated Action, Queen (Aviva) claims $2,500,000, asserting that one or more of the named defendants caused the original power outage and the damage that was ultimately suffered by the transformers, while they were de-energized.
[32] In the Aviva Subrogated Action, the claim against Arcamm is that it failed to preserve the original transformers while they were de-energized and, among other things, failed to ensure that the transformers were not exposed to humidity and/or moisture, which resulted in damage to the existing transformers, which could not be re-energized.
[33] Aside from asserting that Arcamm failed to advise Queen or to take steps necessary to ensure that the transformers were not exposed to damaging humidity, the Aviva Subrogated Action makes no complaint about the services or materials supplied by Arcamm (i.e. the temporary generators and their fuel, the replacement and installation of the damaged gear switches, the supply and installation of the replacement transformers, etc.). The heart of the Aviva Subrogated Action against Arcamm is an allegation that Arcamm (and the other defendants) should have prevented the damage to the transformers caused by humidity.
[34] A determination of the issues raised in the Aviva Subrogated Action namely, what caused the transformers to fail and who, if anyone, was at fault, will require a full evidentiary record put forth by all the named parties, many of whom are not party to Arcamm’s claim here, which is essentially a debt collection claim. The Aviva Subrogated Action will undoubtedly require the evidence of experts to determine both liability and damages. A record on those many issues is not only not before the court on the SJMs, it is not yet available, as the pleadings in the Aviva Subrogated Action are still in the preliminary stages.
(ii) Queen’s claim against Aviva
[35] On June 29, 2022, Queen sued Aviva [^2] when Aviva refused to pay the proofs of loss submitted by Queen (the “Queen Action”). In the Queen Action, Queen seeks a declaration that Queen is entitled to full payment from Aviva of the repair and replacement costs it incurred (including Arcamm’s unpaid invoices) and/or amounts that may be found due and owing by Queen in respect of the damage to the electrical equipment on the Property that occurred on and after June 8, 2021.
[36] In the Queen Action, Queen asserts that, as a result of the failure of the original transformers and the disconnection of the electrical supply, its property manager, Avison, engaged Arcamm to assist in the repairs to the electrical distribution system in the Property. Queen says that it incurred costs for the rental of the temporary generators, the provision of fuel to power the generators, and the cost of two replacement transformers, required when the existing transformers could not be re-energized. Queen also claims that it incurred costs to Arcamm related to the disassembly of the temporary generators and the restoration of the Property to its pre-existing condition.
[37] The Queen Action has not progressed, and, like the Aviva Subrogated Action, is only at the preliminary pleadings stage.
Position taken by Avison
[38] The position taken by Avison on this motion is that, as authorized under the REMSA, it engaged Arcamm as Queen’s agent to perform any necessary repairs, restore power to the Property on an emergency basis, and to provide any other service required because of the electrical outage. Avison states that its principal, Steve Ichelson, kept Queen’s director, Zoran Cocov, informed of the repair work provided by Arcamm and that Mr. Cocov approved Arcamm’s quotes and the labour and materials Arcamm provided.
[39] Avison’s position is that Avison is not liable to Arcamm: Arcamm is not entitled to look to Avison for payment because Avison is not an “owner” as defined under the Act and because Avison, as Queen’s agent, was contracting on behalf of Queen. Avison also looks to Queen to indemnify and hold Avison harmless from Arcamm’s claim pursuant to Queen’s obligations under the REMSA.
[40] As mentioned, a determination of the rights and obligations of the Queen and Avison under the REMSA is the subject of Avison’s SJM against Queen, which was heard separately and will be addressed in the reasons given on that SJM.
The Law on Summary Judgment
[41] 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.
[42] As set out in Hryniak v. Mauldin, 2014 SCC 7, 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.” [^4]
[43] 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.” [^5]
[44] Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion 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.
[45] Hryniak 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.
[46] Partial summary judgment will be denied where there is a clear risk of inconsistent and contradictory findings: See Concord Plumbing & Heating Ltd. v. Canadian Tire Real Estate Limited, (2018) 94 CLR (4th)178, para. 25.
Leave Required under the Act
[47] As noted above, Queen submitted that leave to bring a SJM was required under the Act. Section 13 of O. Reg 302/18 under the Act, reads as follows:
- Interlocutory steps, other than those provided for under the Act, shall not be taken without the consent of the court on proof that the steps are necessary or would expedite the resolution of the issues in dispute.
[48] For reasons given orally, I held that, should leave to bring the SJMs be required under s. 13 of the Regulation, leave would be granted.
[49] In granting leave, I adopted the reasoning of Di Luca J. in Concord Plumbing & Heating Ltd. v. Canadian Tire Real Estate Limited, 2018 ONSC 6361, in which he granted the plaintiff leave to move for summary judgment on unpaid invoices. At para. 13, he adopted the following test for leave, as enunciated by Perell J. in Industrial Refrigerated Systems Inc. v. Quality Meat Packers Ltd., 2015 ONSC 4545 at paras. 72 to 75. Perell J.’s comments at paragraph 73 have particular application to this case:
[73] I shall discuss the caselaw about s. 67(2) momentarily but, speaking practically or pragmatically, unless a motion for leave is brought as a preliminary motion, it is hollow to discuss the leave requirement once the court schedules or approves a timetable for the summary judgment motion. Of course, the court cannot abrogate a statutory leave requirement, but where the moving party does not bring a preliminary motion for leave or the responding party does not move to quash the motion for want of leave having been obtained, the court, having prepared for the motion being argued, should grant leave and hear the motion, which is what I did in the case at bar. After preparing for and hearing the motion on its merits, it would be specious to refuse leave, because refusing leave would just be a pretense for dismissing the motion on its merits. Refusing to grant leave in the circumstances of the case at bar is to close the judicial barn door after the parties’ horses have gone to run their race.
[50] At para. 75, Perell J. states that “case law tends toward the proposition that the leave requirement is a statutory anomaly and rarely should be refused.” I accept that proposition and find that the SJMs will accomplish the stated objective of the Act: to expedite the resolution of the issues in dispute.
[51] There was a significant record before the court on the SJMs and ample court time was provided to allow the parties to make full oral argument.
[52] The record contains numerous affidavits, which were tested in cross-examination. Undertakings on the cross-examinations were given and completed. The parties filed thorough (and multiple) facta and compendia. Submissions on Arcamm’s SJM extended beyond the usual hearing day and the hearing of Avison’s SJM spanned a further two hearing days.
[53] As with many motions for summary judgment, in this case the “horses” left the barn long ago. Unless and until a procedure is adopted by the court to triage motions for summary judgment while the horses are still in the barn, I agree with the view expressed by Perell J. that “refusing to grant leave would just be a pretense for dismissing the motion on its merits”.
[54] The SJM brought by Arcamm will dispose of Arcamm’s claim in its entirety. Similarly, Avison’s SJM will dispose of its liability vis-à-vis Arcamm’s claim.
[55] I also note, as found by the court at para. 22 of Concord, even partial summary judgment is appropriate in a case in which the “discrete legal and factual issues can be readily ascertained and determined so as to avoid the risk of inconsistent findings and duplicative proceedings” and when summary judgment is “a fair, proportionate and just means of resolving the action” (citations omitted). As will be explained, I find that SJMs satisfy those parameters.
Disposition: Summary judgment is appropriate as there are no genuine issues for trial.
[56] The central issue to be decided on Arcamm’s SJM is whether Arcamm is entitled to payment of the invoices it submitted for the services and materials provided in respect of the Property. Based on the evidence before me, I conclude that Arcamm’s claim can be decided on this SJM and that there is no genuine issue for trial.
[57] I make that finding on the evidence as presented and without using the fact-finding powers available to the court under r. 20.
Evidence and Factual Findings
[58] Affidavits put forth in evidence on Arcamm’s SJM were sworn by Harold Bartling, President of Arcamm, by Steve Ichelson, a principal and vice-president of operations of Avison, and by Zoran Cocov, a principal of Queen. Transcripts of the cross-examinations were filed, together with answers to undertakings. In other words, the parties were able to put their best foot forward and to present the court with a comprehensive evidentiary record.
[59] In oral submissions, counsel for Queen acknowledged that the only real issue Queen has respecting Arcamm, is whether Arcamm is liable to Queen in whole, or in part, for the irreparable damage allegedly caused to the original transformers because they were stored in a humid environment while de-energized.
[60] Queen submits that with the multiple lawsuits, the issues in the litigation have become complicated and that there are genuine issues to be tried and “a profound risk of inconsistent and contradictory findings.” Queen acknowledges that if Aviva had continued to fund payment of Arcamm’s invoices, Arcamm’s claim would have been moot. However, Aviva has refused to fund payment of Arcamm’s invoices on the basis that Arcamm should have made Queen aware that there would be “issues” if the [de-energized] transformers were not protected, thereby giving rise to a triable issue.
[61] Queen’s position is that Arcamm’s SJM should either be dismissed or, alternatively, stayed, until a motion can be brought to consolidate Arcamm’s claim with the Aviva Subrogated Action and the Queen Action.
[62] Arcamm’s invoices relate to the following services and materials: (a) to supply emergency temporary generators, used to restore and maintain power to the Property; (b) to supply fuel for the temporary generators; (c) to supply replacement gear switches, replacing those damaged in the original electrical failure; (d) to supply and install two replacement transformers; (e) to arrange and cover the cost to have NPEI connect the replacement transformers to the main power grid; and (f) to remove the damaged transformers.
[63] In essence, Queen’s position is that, until it is determined which of the defendants named in the Aviva Subrogated Action, if any, is liable for the damage allegedly suffered by the transformers while they sat de-energized over the summer of 2021 (assuming that the transformers would have been otherwise fit to re-energize), Queen is not obliged to pay Arcamm’s invoices.
[64] I do not accept Queen’s position.
[65] Arcamm asks this court to consider that the Aviva Subrogated Action and Queen Action are both in the early stages – pleadings are not yet complete – and that no one has asked for, or taken any steps to seek, a consolidation of the proceedings. Also, as Aviva controls the Aviva Subrogated Action, the pace of that proceeding is beyond the control of Queen.
[66] Arcamm’s submissions are well-taken. As between Queen and Arcamm, I have no hesitation whatsoever in concluding that it is Queen that should bear the cost of restoring power to the Property: Queen has enjoyed the benefit of the services and materials provided by Arcamm, which allowed Queen to carry on its business and to meet its obligations to its tenants. It was at the request and direction of Queen (or at least that of its agent, Avison) that Arcamm supplied Queen with temporary generators, the fuel to run them, and provided and connected replacement transformers. I conclude that it should be Queen, not Arcamm, which should assume those costs while Queen is engaged in a dispute with its own insurers over what expenses are covered by insurance.
[67] In short, Queen asserts that Arcamm was required to ensure that the de-energized transformers were properly stored in a de-humidified environment. For reasons given, I conclude that a determination of that issue - who may be liable for the damage caused to the de-energized transformers - is properly determined in the Aviva Subrogated Action, which names other parties who may be found liable, in whole or in part.
[68] I do not accept Queen’s submissions that simply because there is a multiplicity of proceedings, a decision on Arcamm’s SJM will create a risk of inconsistent or contradictory findings on key issues: I make no determination of Arcamm’s liability, if any, for the damaged transformers.
[69] Queen’s damages claim against Arcamm ought to be determined in the Aviva Subrogated Action and not used, as it is here, as a defence to payment of invoices rendered by Arcamm for services and materials in respect of which Queen has admitted it has no valid dispute.
[70] For clarity, a determination on this motion that Arcamm is entitled to payment of its invoices is intended to have no bearing at all on the determination of whether Arcamm has any liability to Queen for damage to the transformers and I make no such finding here.
[71] I conclude that there is no genuine issue for trial with respect to whether Arcamm is entitled to payment for the services and materials it provided in respect of the Property.
Who are the “owners” under the Act?
[72] Arcamm’s SJM seeks payment from both Avison and Queen. In its Lien under the Act, Arcamm identifies both Queen and Avison as owners. In its Reply Factum, Arcamm asserts that Queen and “Avison are intertwined and together satisfy the requirements of “owner” under the Act” , (at para. 21).
[73] Avison denies that it is an “owner” under the Act and that it contracted as agent for Queen. Queen also denies that it is an “owner” for the purposes of Arcamm’s claim and denies that it contracted with Arcamm.
[74] S. 1(1) of the Act defines an “owner” as follows:
“owner” means any person, including the Crown, having an interest in a premises at whose request and, (a) upon whose credit, or (b) on whose behalf, or (c) with whose privity or consent, or (d) for whose direct benefit, an improvement is made to the premises but does not include a home buyer;
[75] The Act also requires that an owner have an interest in land: Ravenda Homes Ltd. v. 1372708 Ontario Inc. et al., 2017 ONCA 834, at para. 29.
[76] It is undisputed that Queen is the registered owner of the Property.
[77] It is undisputed that Avison was the property manager for the Property.
[78] Avison’s connection to the Property and to Queen is contractual, through the REMSA. As such, I accept that Avison cannot also be an owner: 698147 Ontario Limited v Enescu et al., 2015 ONSC 6827, at para 43.
[79] At para. 3.1 of the REMSA, it specifically states that the Agent [Avison] shall have not right or interest in the Property…[and] shall be the agent of Owner”.
[80] The evidence on this motion is unequivocal: Queen is the sole registered owner of the Property. Avison has no interest in the Property. This evidence is supported by Queen: see, Cocov cross-examination, at qq. 164-175.
[81] I accept Avison’s assertion that it is not an “owner’ as defined under the Act.
[82] On this motion, Arcamm submits that it contracted with Avison and Queen and is entitled to judgment against both, based on contract.
[83] I conclude otherwise.
[84] Despite that Arcamm’s invoices were submitted to Queen, “c/o Avison”, on their face, these invoices make it clear that the invoice belongs to Queen.
[85] In his evidence, Arcamm’s principal, Harold Bartling, acknowledges that the owner of the Property is Queen; that the invoices went to Queen; that Avison was acting on behalf of Queen as the property manager; and that Queen was paying the bills (Transcript of Harold Bartling).
[86] That and the other evidence on this motion, supports a finding, which I make, that Arcamm’s contractual relationship was with Queen, as the owner of the Property, and that Arcamm knew, or ought to have known, that Avison, as property manager, was acting solely as Queen’s agent, and never expected, nor intended, that it would to be personally liable to pay Arcamm’s invoices.
[87] The evidence on this motion also supports a finding, which I make, that the invoices on which Arcamm seeks payment relate to services and materials requested by Queen; to Queen’s benefit; provided in a timely and competent manner; and fully approved by the requisite authorities.
[88] Thus, I conclude that the evidence establishes that Queen is an “owner” as defined under s.1(1) of the Act and that the “improvements” made to the Property by Arcamm, were at the request of Queen, albeit through Queen’s agent, Avison, upon Queen’s credit, on behalf of Queen, with Queen’s consent, and for the direct benefit of Queen, who was thereby able to meet its obligations to its tenants.
[89] In its defence to Arcamm’s claim, Queen denies that it retained Arcamm and that it was Avison who retained Arcamm in connection with the electrical failure and that any amounts that may be found due and owing to Arcamm, are, in fact, due and owing by Avison and/or Aviva, and others. In its defence, Queen also denies that it is an “owner” in respect of any improvement made to the Property. This latter allegation is in clear contradiction of the evidence before the court.
[90] Despite Queen’s pleadings, the ample record before the court on this motion leaves me with no doubt that Queen is an owner as defined under the Act and, as owner, is liable to Arcamm.
[91] Similarly, I have no hesitation in concluding that in its dealings with Arcamm and pursuant to the REMSA, Avison was acting as Queen’s agent and that Queen, not Avison, is liable to Arcamm in contract.
[92] I conclude that Avison is not liable to Arcamm either as an owner, which Avison is not, nor in contract: Avison did not retain Arcamm on its own behalf but solely as Queen’s agent.
Proper Invoices
[93] One of the arguments advanced by Arcamm on its SJM is that its invoices must be paid as submitted pursuant to the “prompt payment” provisions found at Part I.1 of the Act.
[94] I find otherwise. While there may be other reasons on which to find that that the prompt payment provisions do not apply, the starting point for my decision is that the invoices do not meet the strict definition of “proper invoices” under s. 6.1 of the Act.
[95] S. 6.1 of the Act defines a “proper invoice as follows:
“proper invoice” means a written bill or other request for payment for services or materials in respect of an improvement under a contract, if it contains the following information and, subject to subsection 6.3 (2), meets any other requirements that the contract specifies:
- The contractor’s name and address.
- The date of the proper invoice and the period during which the services or materials were supplied.
- Information identifying the authority, whether in the contract or otherwise, under which the services or materials were supplied.
- A description, including quantity where appropriate, of the services or materials that were supplied.
- The amount payable for the services or materials that were supplied, and the payment terms.
- The name, title, telephone number and mailing address of the person to whom payment is to be sent.
- Any other information that may be prescribed. 2017, c. 24, s. 7.
[96] Arcamm’s invoices fail to: (a) clearly set out the period during which services or materials were supplied. For example, Invoice Number 109146, dated July 31, 2021, states “Fuel consumption as of July 31, 2021” - thus it describes the end date for the supply of the fuel but not the period during which the fuel was supplied; (b) identify the authority, whether in the contract or otherwise, under which the services or materials were supplied; (c) specify the name, title, telephone number and mailing address of the person to whom payment is to be sent (emphasis added).
[97] By reasons of those failings, I find that Arcamm cannot rely on the prompt payment provisions under the Act.
No Dispute over the quality of Arcamm’s services or materials
[98] Mr. Ichelson of Avison was Arcamm’s direct contact with respect to the services and materials that are the subject of Arcamm’s claim.
[99] Queen’s principal, Mr. Cocov, had no direct dealings with Arcamm and relied upon Avison to secure and oversee contractors retained to restore power to the Property, and the repair and/or replacement of the related equipment. Queen was kept informed of and approved the quotes submitted by Arcamm and the services and materials that Arcamm supplied.
[100] After initially paying for the generator rental costs, Aviva then denied further payment. Queen, in turn, stopped paying Arcamm. Despite knowing that Aviva was denying coverage, Queen continued to use the generators supplied through Arcamm and, later, asked for and accepted Arcamm’s quote to supply replacement transformers. Queen approved Arcamm’s quotes, received the services and materials provided by Arcamm, but ultimately refused to pay Arcamm.
[101] At no material time did Queen take issue with the services and materials provided by Arcamm. This is confirmed in an internal email dated March 8, 2022, long after Arcamm had completed its work, between Mr. Ichelson and Mr. Cocov. Mr. Ichelson, who had personal knowledge of the services and materials supplied by Arcamm, confirmed to Mr. Cocov that “No one is disputing the work that was done and the quality of the repairs.”
[102] Mr. Ichelson swore an affidavit on November 8, 2022, replying to Mr. Cocov’s affidavit of October 27, 2022, which alleged, in part, that Avison was grossly negligent and in breach of its obligations under the REMSA and that Arcamm’s claim would not have been brought but for the “gross negligence and/or willful misconduct of” Avison. Only in his reply affidavit, does Mr. Ichelson allege that Arcamm’s preventative maintenance of the de-energized transformers was “deficient” in that “Arcamm did not protect the transformers from humidity damage even though their mandate was to undertake preventative maintenance of the transformers while they ordered new parts to complete repairs on the switch gear” (at para. 10).
[103] Mr. Ichelson’s statement may be relevant to the claims advanced in the Aviva Subrogated Action relating to the damage to the existing transformers but, in my view, it neither defeats, nor undermines, Arcamm’s SJM for payment on its invoices. Queen’s losses, if any, relate to the damage to the transformers, and Arcamm’s liability, if any, for such losses, remains to be determined in the Aviva Subrogated Action.
[104] At the risk of being repetitive, Arcamm’s liability to Queen respecting the transformers ought not to be decided in this action or by this court on Arcamm’s SJM but in the Aviva Subrogated Action.
[105] On motions for summary judgment, it is said that the parties “must lead trump or risk losing.” Applying that principle to the evidence put forth by Queen on Arcamm’s SJM, I would conclude that Queen has lost: the evidence put forth by Queen falls short of establishing liability on the part of Arcamm. For example, in his email to Mr. Cocov of March 8 2022, Mr. Ichelson, who had been authorized by Queen to deal with Aviva, confirmed that Aviva’s first engineer opined that the transformers’ failure was “a follow on result of the original claim” and Aviva’s second engineer opined that the transformers failed “due to age” and that the engineer retained by Queen’s opined that the report of the Aviva’s second engineer was a “a load of ‘bull---.” Nowhere in this candid email is it suggested that Arcamm is at fault.
[106] Another example in which the evidence put forth by Queen on this SJM falls short, is its acknowledgement that until Aviva took the position that Queen’s claim was not covered by insurance, Queen took no issue with the services and materials provided by Arcamm: Queen approved Arcamm’s quotes; submitted proof of loss claims to Aviva for payment of Arcamm’s invoices; and approved payment of Arcamm’s invoices from the funds received from Aviva: see, for example, the transcript of Mr. Cocov at pp. 82, 28, and 57.
[107] I have considered the evidence put forth on this motion, which I find allows me to make the following factual findings: (i) Avison represented to Arcamm that it was acting as Queen’s authorized agent and that it had authority to contract with Arcamm on behalf of Queen and to thereby bind and obligate Queen to pay Arcamm for services and materials; (ii) Queen was the owner of the Property; (iii) Avison was not an owner of the Property and at all times, was acting solely as Queen’s agent under the REMSA; (iv) Queen was fully aware of the fact that Avison had engaged Arcamm to supply the services and materials to the Property and for which Arcamm submitted invoices; (v) Queen: a) reviewed and approved the quotes submitted by Arcamm for the services and materials to be provided by Arcamm to the Property; b) and/or its directors, had no direct personal knowledge of the labour and materials supplied by Arcamm and relied upon Avison to ensure that the work performed by Arcamm was done properly and approved by the appropriate authority; c) at no time disputed the work that was done or the quality of the repairs performed by Arcamm; d) knew that Arcamm intended to, and did, submit invoices to Queen for payment in respect of the services and materials provided; e) benefitted from the services and materials provided by Arcamm, by which power was restored to the Property quickly and was maintained throughout the period during which the Property’s transformers were inoperable; and f) submitted proofs of loss to its own insurer, Aviva, in respect of labour and materials supplied by Arcamm, for which Arcamm submitted invoices.
No risk of inconsistent findings.
[108] As noted above, the essence of the Aviva Subrogated Action claim against Arcamm is that, between June 2021 and September 15, 2021, the de-energized transformers were exposed to high humidity, which caused them damage, necessitating their replacement. That claim is not advanced in this action. I neither need to make nor, in fact, do make any findings as to Arcamm’s liability on that issue. Therefore, I find that there is not a “clear risk” that my findings on Arcamm’s SJM might be inconsistent or contradictory with any findings in the Aviva Subrogated Action or the Queen Action.
Liability to Arcamm and Amount claimed
[109] Arcamm’s summary of the amounts owing on the invoices, including interest to November 16, 2022, are marked as Appendix “A” to these Reasons for Judgment.
[110] Based on the record before me, my findings of fact based on that record, and my application of the law to those facts, I find that Arcamm is entitled to payment from Queen, both as owner under the Act, and in contract, on its invoices which are listed in Schedule “C”.
[111] I also find that Arcamm is not entitled to payment from Avison; Avison is not an owner under the Act and is not liable in contract to Arcamm. I conclude that Avison was at all times acting as agent of Queen and not in its personal capacity.
Interest Amount
[112] Although the invoices include an amount for interest, the quotes submitted to Queen are silent on the payment of interest or the rate to be charged. As a result, I find that Arcamm’s entitlement to interest on the unpaid balance of its invoices is limited to the rate set out under the Courts of Justice Act, R.S.O. 1990, chap. C. 43, as claimed by Arcamm in the alternative.
[113] Where the quotes and/or invoices provide when payment is to be made, interest on the unpaid invoices is to be calculated from that date. For example, if the quote and/or invoice says “net 30 days”, interest is to run from day 31, calculated to the date of these reasons for judgment.
Further Submissions Required
[114] Arcamm is to prepare and serve Queen with its calculation of the principal and interest on each invoice, calculated in accordance with the above direction. If Queen agrees with Arcamm, then Arcamm is to submit its calculations to the court, which will be used as the judgment amount.
[115] If Arcamm and Queen cannot agree on the principal and interest calculations, each of them shall serve and file their calculations, with a brief explanation for that calculation, not to exceed two pages. Unless I request a brief attendance before me for oral submissions, the principal and interest amounts (i.e. the judgement amount) will be determined from the parties’ written submissions.
Costs of the SJM
[116] Arcamm was successful as against Queen and is presumptively entitled to its costs of the SJM from Queen.
[117] Arcamm was unsuccessful as against Avison, which is presumptively entitled to its costs of defending Arcamm’s SJM.
[118] The parties may make submissions as to which of Arcamm or Queen should be responsible to pay Avison’s costs of this SJM.
[119] The parties are urged to attempt to reach an agreement on costs, if they are unable to do so, costs submissions may be made as follows:
- Within 21 days of the date of the release of this decision, Arcamm shall serve Queen and Avison, and file with the court, its written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs, evidence of docketed time, and copies of any relevant offers to settle.
- Within 14 days of service of Arcamm’s costs submissions, Queen and Avison may serve and file their responding submissions, not to exceed three pages, double-spaced, together with their draft bills of costs, evidence of docketed time, and copies of any relevant offers to settle.
- Within 7 days of service of the responding submissions, reply submissions, not exceeding one page in length, may be delivered by any party.
- 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.
Justice Sheard Released: February 17, 2023
Appendix “A”
SCHEDULE "C" - SUMMARY OF AMOUNTS OWING
| Item | Amount | Location in Motion Materials |
|---|---|---|
| Amounts owing for materials and services provided as particularized in invoices submitted. | $965,223.34 | Exhibit "K" of the Bartling Affidavit and TAB 2 of Undertakings of Harold Bartling, dated November 28, 2022. |
| Storage of the two transformers (owing since November 2022) | $565.00 | Exhibit "K" of the Bartling Affidavit, pages 89 - 92. |
| Connection Cost paid to NPEI | $10,488.04 | Exhibit "G" of the Bartling Affidavit, page 61. |
| *Disposal of the two transformers (inclusive of HST). | $8,475.00 | Exhibit "T" of the Bartling Affidavit, page 145. |
| Interest (as of November 16, 2022) | $265,282.63 | TAB 2 (November 16, 2022, Statement of Account) to the Answers to Undertakings of Harold Bartling dated November 28, 2022. |
| TOTAL | $1,250,034.01 |
Arcamm Electric
6790 Davand Drive Unit #5 Mississauga, Ontario LST 2G5
4342 Queen ST Niagara Holdings Inc. c/o Avison Young Real Estate Management Services LP Simpson Tower 401 Bay St. Suite 1100 Mailbox 11 Toronto, Ontario M5H 2Y4
STATEMENT
| Statement Date | 11/16/2022 | Statement Date | 11/16/2022 |
|---|---|---|---|
PLEASE RETURN THIS PORTION WITH YOUR PAYMENT
AMOUNT REMITTED
| Invoice No. | Transaction Type | Transaction Date | Amount | Amount Due |
|---|---|---|---|---|
| Bill | 07/31/2021 | 183,342.20 | ||
| Payment | 09/02/2021 | -9546.30 | ||
| 109146 | 173,795.90 | |||
| Bill | 09/30/2021 | 106,608.72 | ||
| Payment | 10/20/2021 | -102220.51 | ||
| 109295 | 4,388.21 | |||
| 109296 | Bill | 09/30/2021 | 169,462.48 | |
| 109358 | Bill | 11/01/2021 | 106,608.72 | |
| 109359 | Bill | 11/01/2021 | 168,033.94 | |
| 109340 | Bill | 11/02/2021 | 279,875.01 | |
| 109350 | Bill | 11/03/2021 | 3,498.48 | |
| 109352 | Bill | 11/04/2021 | 2,440.80 | |
| 109353 | Bill | 11/04/2021 | 1,254.30 | |
| 109354 | Bill | 11/04/2021 | 2,384.30 | |
| 109355 | Bill | 11/04/2021 | 6,050.47 | |
| 109356 | Bill | 11/04/2021 | 19,903.93 | |
| 109368 | Bill | 11/10/2021 | 26,652.18 | |
| 109390 | Bill | 11/17/2021 | 874.62 | |
| 110087 | Bill | 11/01/2022 | 565.00 | |
| Interest | 264,717.63 | |||
[^1]: Commenced at St. Catharines, CV-22-00060909-0000 [^2]: Commenced at St. Catharines, CV-22-00060841-0000 [^4]: Ibid, at para. 49. [^5]: Ibid, at para. 50.
COURT FILE NO.: CV-22-00060577-0000 DATE: 20230217
ONTARIO SUPERIOR COURT OF JUSTICE
In the Matter of the Construction Act, R.S.O. 1990, c.C.30, as amended
BETWEEN:
Arcamm Electrical Services Ltd. Plaintiff/Moving Party
– and –
Avison Young Real Estate Management Services LP and 4342 Queen St Niagara Holdings Inc. Defendants/Responding Parties
Counsel: Michael C. Mazzuca, for Plaintiff/Moving Party Frank Costantini, for Defendant/Responding Party, Avison Young Real Estate Management Services LP James R. Smith, for Defendant/Responding Party, 4342 Queen St Niagara Holdings Inc.
HEARD: January 12, 2023
REASONS FOR JUDGMENT ON PLAINTIFF’S SUMMARY JUDGMENT MOTION
Justice L. Sheard
Overview
[1] On June 8, 2021, a sudden electrical failure involving the high-voltage electrical system at 4342 Queen St., Niagara Falls, ON (the “Property”) caused a complete power outage in the six-storey, 13,800 square metre, commercial building.
[2] The Property is registered in the name of 4342 Queen St. Niagara Holdings Inc. (“Queen”). Queen describes the Property as a federal building that requires power 24 hours per day, seven days per week, with some of its 10 commercial tenants designated as essential service providers during the Covid-19 pandemic.
[3] Pursuant to the Real Estate Management Services Agreement between them (the “REMSA”), Avison Young Real Estate Management Services LP (“Avison”, defined therein as “Agent”) contracted with Queen (defined therein as “Owner”) was appointed as “the sole and exclusive management and operating agent for the Property” with the “power and authority to manage and operate the Property”. Avison was authorized to negotiate contracts with third parties if within the “Approved Budget” and, with some exceptions, was required to seek Queen’s approval for all extraordinary expenditures. One such exception related to expenditures for emergency repairs, for which Avison did not need to seek Queen’s approval, if the expenditures were necessary to protect the Property “from immediate risk of danger or to maintain services Owner is required to provide”.
[4] It is undisputed that the loss of power to the Property on June 8, 2021, constituted an “emergency” and that electricity was a service that Queen, the Owner, was required to provide to its tenants.
[5] Exercising its authority under the REMSA, Avison hired the plaintiff, Arcamm Electrical Services Ltd. (“Arcamm”), to do what was needed to restore power to the Property on an emergency basis, and to provide any other services arising out of or related to the electrical failure.
[6] Arcamm is a commercial electrical contractor, in business for 34 years, and experienced with transformer replacement work.
[7] Within less than 24 hours of Avison’s request, Arcamm had sourced and installed two temporary generators and power was restored to the Property. The monthly cost associated with running the temporary generators, including rental fee and fuel, was approximately $255,000.
[8] Arcamm was also asked to submit a quote for the replacement of the electrical Switch Gear damaged on June 8, 2021. On July 22, 2021, Avison and Queen approved its quote and Arcamm ordered the replacement Switch Gear. Work to replace the Switch Gear began in late August 2021. On September 13, 2021, Arcamm’s work was inspected and certified by the Electrical Safety Authority (the “ESA”).
[9] On September 9, 2021, the Property’s existing transformers were tested and failed to meet the requisite standard for re-energization. Avison then asked Arcamm to submit a quote for the supply of replacement transformers. Arcamm did so on September 17, 2021, and Avison and Queen approved the quote.
[10] On October 30, 2021, Arcamm removed the existing transformers and installed the replacement transformers. Arcamm also paid the charge imposed by Niagara Peninsula Energy Inc. (“NPEI”) to reconnect this high-voltage equipment to the electrical grid.
[11] On November 1, 2021, the ESA conducted a final inspection and certified that Arcamm’s work was completed in compliance with the requisite Codes and Regulations, thereby allowing the Property to re-connect to the power grid. Arcamm subsequently removed the two temporary generators that had been providing the Property with power.
The Motions before the Court
[12] There were two motions for summary judgment (“SJM”) returnable before me on January 12, 2023.
(i) Arcamm’s SJM as against Avison and Queen in respect of the unpaid invoices it submitted for the work described above.
[13] Schedule “C” of Arcamm’s factum is a statement of its unpaid invoices and accrued interest to November 16, 2022 of $265,282.63, for a total amount then owing of $1,250,034.01. Schedule “C” and Arcamm’s Statement to Queen dated 11/16/2022 are attached to these Reasons for Judgment as Appendix “A”.
[14] Both Avison and Queen deny liability to Arcamm. Their positions are set out later in these reasons.
(ii) Avison’s SJM as against Queen for a determination that under the REMSA, Avison was entitled to be indemnified and held harmless from Arcamm’s claim.
[15] In Avison’s SJM, it sought an order that under the REMSA, Queen is obligated to indemnify and hold Avison harmless from Arcamm’s claim and from the costs incurred by Avison to defend Arcamm’s claim. Concerned that the court might grant judgment against it on Arcamm’s SJM, Avison returned its SJM on the same day as Arcamm’s SJM.
[16] Based on the numbering used in Caselines, there are in excess of 3100 pages filed on the two SJMs. In the Motions Confirmation Forms, counsel advised that it would take 300 minutes to argue both these motions.
[17] That time estimate was entirely unrealistic.
[18] At the outset of oral argument on Arcamm’s SJM, it became clear that Arcamm’s SJM alone, would consume most of the day. In fact, the hearing began at approximately 10 a.m. and concluded at approximately 5:22 p.m.
[19] In oral submissions on its SJM, Arcamm agreed that, pending a final determination of Avison’s SJM, Arcamm would not seek to enforce any judgment that it might obtain against Avison on Arcamm’s SJM. On that basis, and on consent, Avison’s SJM was adjourned to February 1, 2023, for a one-day hearing before me. As there was no need for Arcamm to participate in the determination of the contractual obligations under the REMSA as between Queen and Avison, Arcamm was not required to attend at the hearing of Avison’s SJM. Avison’s SJM proceeded on February 1, 2023, and continued on February 10, 2023, for a second day. Reasons on Avison’s SJM will be released separately.
[20] Although the hearing of the two SJMs ultimately proceeded separately, the materials had been filed with the understanding that both SJMs would be heard together. Therefore, for the purposes of my decisions on both SJMs, I treat the materials filed as comprising one record.
Arcamm’s Motion for Summary Judgment
[21] Arcamm’s SJM was heard on January 12, 2023.
[22] Arcamm’s SJM was brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Arcamm also relied upon Section 50 (2) of the Act, described as the “prompt payment” provisions.
[23] For the reasons more fully set out below, I find that prompt payment provisions of the Act do not apply. Briefly, I find that Arcamm’s invoices are not “proper invoices” as defined under s. 6.1 of the Act. As a result of that finding, in these reasons, I have considered only whether summary judgment can and should be granted pursuant to r. 20.
Positions of the Parties
[24] Arcamm’s position is that it was retained by Queen, through Avison, to restore electrical power to the Property on a temporary basis, until permanent high-voltage transformers could be re-energized. Arcamm did supply temporary generators which supplied emergency electrical energy to the Property throughout the months during which the existing transformers were unusable. Queen has not fully paid Arcamm for the temporary generators or for the fuel needed to operate them.
[25] As a result of the labour and materials provided by Arcamm to Queen, the Property and, in turn, Queen’s tenants, were supplied with round-the-clock electrical power within days of the original power outage of June 8, 2021, until power was permanently restored on or about November 1, 2021.
[26] When it was determined that the existing transformers could not be re-energized, Arcamm was invited to submit a quote for the supply and installation of replacement transformers. Queen accepted Arcamm’s quote, and the work was completed by Arcamm. Arcamm also arranged for and paid to re-connect the replacement transformers to the electricity grid.
[27] It is undisputed that Queen submitted proofs of loss to its insurer, Aviva Insurance Company of Canada (“Aviva”), which initially approved Queen’s proofs of loss and provided Queen with funds from which to pay Arcamm’s invoices. However, Aviva later denied coverage to Queen, which, in turn, stopped paying Arcamm. Arcamm submits further that, despite knowing that Aviva was denying coverage, Queen continued to request and to receive services and materials from Arcamm, thereby ensuring that Queen had an uninterrupted supply of electricity to the Property and was able to meet its obligations to its tenants, while not paying Arcamm.
Queen’s Position
(a) Leave is required under the Act and should be denied
[28] Queen submitted at the outset that the SJMs brought by Arcamm and Avison ought not to proceed on the basis that the Act requires that leave to bring an interlocutory proceeding be sought, and that the test for granting leave could not be met.
(b) Other related claims exist that create a risk of inconsistent findings
[29] Queen also asserts that Arcamm’s SJM ought not to be proceed because, in part, there are other proceedings involving other parties, all related to the same transactions and that to grant summary judgment in this matter would risk inconsistent findings. The record before the court includes copies of other actions commenced in relation to the power outage on the Property.
(i) Aviva’s subrogated claim
[30] One such action is the subrogated claim brought by Aviva on July 29, 2022, which issued a claim in Queen’s name as against Niagara Peninsula Energy Inc., Arcamm, Horizon High Voltage Services Inc., Avison’s four various legal entities and Power Engineering Services Ltd. (the “Aviva Subrogated Action”) [^1].
[31] In the Aviva Subrogated Action, Queen (Aviva) claims $2,500,000, asserting that one or more of the named defendants caused the original power outage and the damage that was ultimately suffered by the transformers, while they were de-energized.
[32] In the Aviva Subrogated Action, the claim against Arcamm is that it failed to preserve the original transformers while they were de-energized and, among other things, failed to ensure that the transformers were not exposed to humidity and/or moisture, which resulted in damage to the existing transformers, which could not be re-energized.
[33] Aside from asserting that Arcamm failed to advise Queen or to take steps necessary to ensure that the transformers were not exposed to damaging humidity, the Aviva Subrogated Action makes no complaint about the services or materials supplied by Arcamm (i.e. the temporary generators and their fuel, the replacement and installation of the damaged gear switches, the supply and installation of the replacement transformers, etc.). The heart of the Aviva Subrogated Action against Arcamm is an allegation that Arcamm (and the other defendants) should have prevented the damage to the transformers caused by humidity.
[34] A determination of the issues raised in the Aviva Subrogated Action namely, what caused the transformers to fail and who, if anyone, was at fault, will require a full evidentiary record put forth by all the named parties, many of whom are not party to Arcamm’s claim here, which is essentially a debt collection claim. The Aviva Subrogated Action will undoubtedly require the evidence of experts to determine both liability and damages. A record on those many issues is not only not before the court on the SJMs, it is not yet available, as the pleadings in the Aviva Subrogated Action are still in the preliminary stages.
(ii) Queen’s claim against Aviva
[35] On June 29, 2022, Queen sued Aviva [^2] when Aviva refused to pay the proofs of loss submitted by Queen (the “Queen Action”). In the Queen Action, Queen seeks a declaration that Queen is entitled to full payment from Aviva of the repair and replacement costs it incurred (including Arcamm’s unpaid invoices) and/or amounts that may be found due and owing by Queen in respect of the damage to the electrical equipment on the Property that occurred on and after June 8, 2021.
[36] In the Queen Action, Queen asserts that, as a result of the failure of the original transformers and the disconnection of the electrical supply, its property manager, Avison, engaged Arcamm to assist in the repairs to the electrical distribution system in the Property. Queen says that it incurred costs for the rental of the temporary generators, the provision of fuel to power the generators, and the cost of two replacement transformers, required when the existing transformers could not be re-energized. Queen also claims that it incurred costs to Arcamm related to the disassembly of the temporary generators and the restoration of the Property to its pre-existing condition.
[37] The Queen Action has not progressed, and, like the Aviva Subrogated Action, is only at the preliminary pleadings stage.
Position taken by Avison
[38] The position taken by Avison on this motion is that, as authorized under the REMSA, it engaged Arcamm as Queen’s agent to perform any necessary repairs, restore power to the Property on an emergency basis, and to provide any other service required because of the electrical outage. Avison states that its principal, Steve Ichelson, kept Queen’s director, Zoran Cocov, informed of the repair work provided by Arcamm and that Mr. Cocov approved Arcamm’s quotes and the labour and materials Arcamm provided.
[39] Avison’s position is that Avison is not liable to Arcamm: Arcamm is not entitled to look to Avison for payment because Avison is not an “owner” as defined under the Act and because Avison, as Queen’s agent, was contracting on behalf of Queen. Avison also looks to Queen to indemnify and hold Avison harmless from Arcamm’s claim pursuant to Queen’s obligations under the REMSA.
[40] As mentioned, a determination of the rights and obligations of the Queen and Avison under the REMSA is the subject of Avison’s SJM against Queen, which was heard separately and will be addressed in the reasons given on that SJM.
The Law on Summary Judgment
[41] 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.
[42] As set out in Hryniak v. Mauldin, 2014 SCC 7, 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.” [^4]
[43] 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.” [^5]
[44] Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion 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.
[45] Hryniak 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.
[46] Partial summary judgment will be denied where there is a clear risk of inconsistent and contradictory findings: See Concord Plumbing & Heating Ltd. v. Canadian Tire Real Estate Limited, (2018) 94 CLR (4th)178, para. 25.
Leave Required under the Act
[47] As noted above, Queen submitted that leave to bring a SJM was required under the Act. Section 13 of O. Reg 302/18 under the Act, reads as follows:
- Interlocutory steps, other than those provided for under the Act, shall not be taken without the consent of the court on proof that the steps are necessary or would expedite the resolution of the issues in dispute.
[48] For reasons given orally, I held that, should leave to bring the SJMs be required under s. 13 of the Regulation, leave would be granted.
[49] In granting leave, I adopted the reasoning of Di Luca J. in Concord Plumbing & Heating Ltd. v. Canadian Tire Real Estate Limited, 2018 ONSC 6361, in which he granted the plaintiff leave to move for summary judgment on unpaid invoices. At para. 13, he adopted the following test for leave, as enunciated by Perell J. in Industrial Refrigerated Systems Inc. v. Quality Meat Packers Ltd., 2015 ONSC 4545 at paras. 72 to 75. Perell J.’s comments at paragraph 73 have particular application to this case:
[73] I shall discuss the caselaw about s. 67(2) momentarily but, speaking practically or pragmatically, unless a motion for leave is brought as a preliminary motion, it is hollow to discuss the leave requirement once the court schedules or approves a timetable for the summary judgment motion. Of course, the court cannot abrogate a statutory leave requirement, but where the moving party does not bring a preliminary motion for leave or the responding party does not move to quash the motion for want of leave having been obtained, the court, having prepared for the motion being argued, should grant leave and hear the motion, which is what I did in the case at bar. After preparing for and hearing the motion on its merits, it would be specious to refuse leave, because refusing leave would just be a pretense for dismissing the motion on its merits. Refusing to grant leave in the circumstances of the case at bar is to close the judicial barn door after the parties’ horses have gone to run their race.
[50] At para. 75, Perell J. states that “case law tends toward the proposition that the leave requirement is a statutory anomaly and rarely should be refused.” I accept that proposition and find that the SJMs will accomplish the stated objective of the Act: to expedite the resolution of the issues in dispute.
[51] There was a significant record before the court on the SJMs and ample court time was provided to allow the parties to make full oral argument.
[52] The record contains numerous affidavits, which were tested in cross-examination. Undertakings on the cross-examinations were given and completed. The parties filed thorough (and multiple) facta and compendia. Submissions on Arcamm’s SJM extended beyond the usual hearing day and the hearing of Avison’s SJM spanned a further two hearing days.
[53] As with many motions for summary judgment, in this case the “horses” left the barn long ago. Unless and until a procedure is adopted by the court to triage motions for summary judgment while the horses are still in the barn, I agree with the view expressed by Perell J. that “refusing to grant leave would just be a pretense for dismissing the motion on its merits”.
[54] The SJM brought by Arcamm will dispose of Arcamm’s claim in its entirety. Similarly, Avison’s SJM will dispose of its liability vis-à-vis Arcamm’s claim.
[55] I also note, as found by the court at para. 22 of Concord, even partial summary judgment is appropriate in a case in which the “discrete legal and factual issues can be readily ascertained and determined so as to avoid the risk of inconsistent findings and duplicative proceedings” and when summary judgment is “a fair, proportionate and just means of resolving the action” (citations omitted). As will be explained, I find that SJMs satisfy those parameters.
Disposition: Summary judgment is appropriate as there are no genuine issues for trial.
[56] The central issue to be decided on Arcamm’s SJM is whether Arcamm is entitled to payment of the invoices it submitted for the services and materials provided in respect of the Property. Based on the evidence before me, I conclude that Arcamm’s claim can be decided on this SJM and that there is no genuine issue for trial.
[57] I make that finding on the evidence as presented and without using the fact-finding powers available to the court under r. 20.
Evidence and Factual Findings
[58] Affidavits put forth in evidence on Arcamm’s SJM were sworn by Harold Bartling, President of Arcamm, by Steve Ichelson, a principal and vice-president of operations of Avison, and by Zoran Cocov, a principal of Queen. Transcripts of the cross-examinations were filed, together with answers to undertakings. In other words, the parties were able to put their best foot forward and to present the court with a comprehensive evidentiary record.
[59] In oral submissions, counsel for Queen acknowledged that the only real issue Queen has respecting Arcamm, is whether Arcamm is liable to Queen in whole, or in part, for the irreparable damage allegedly caused to the original transformers because they were stored in a humid environment while de-energized.
[60] Queen submits that with the multiple lawsuits, the issues in the litigation have become complicated and that there are genuine issues to be tried and “a profound risk of inconsistent and contradictory findings.” Queen acknowledges that if Aviva had continued to fund payment of Arcamm’s invoices, Arcamm’s claim would have been moot. However, Aviva has refused to fund payment of Arcamm’s invoices on the basis that Arcamm should have made Queen aware that there would be “issues” if the [de-energized] transformers were not protected, thereby giving rise to a triable issue.
[61] Queen’s position is that Arcamm’s SJM should either be dismissed or, alternatively, stayed, until a motion can be brought to consolidate Arcamm’s claim with the Aviva Subrogated Action and the Queen Action.
[62] Arcamm’s invoices relate to the following services and materials: (a) to supply emergency temporary generators, used to restore and maintain power to the Property; (b) to supply fuel for the temporary generators; (c) to supply replacement gear switches, replacing those damaged in the original electrical failure; (d) to supply and install two replacement transformers; (e) to arrange and cover the cost to have NPEI connect the replacement transformers to the main power grid; and (f) to remove the damaged transformers.
[63] In essence, Queen’s position is that, until it is determined which of the defendants named in the Aviva Subrogated Action, if any, is liable for the damage allegedly suffered by the transformers while they sat de-energized over the summer of 2021 (assuming that the transformers would have been otherwise fit to re-energize), Queen is not obliged to pay Arcamm’s invoices.
[64] I do not accept Queen’s position.
[65] Arcamm asks this court to consider that the Aviva Subrogated Action and Queen Action are both in the early stages – pleadings are not yet complete – and that no one has asked for, or taken any steps to seek, a consolidation of the proceedings. Also, as Aviva controls the Aviva Subrogated Action, the pace of that proceeding is beyond the control of Queen.
[66] Arcamm’s submissions are well-taken. As between Queen and Arcamm, I have no hesitation whatsoever in concluding that it is Queen that should bear the cost of restoring power to the Property: Queen has enjoyed the benefit of the services and materials provided by Arcamm, which allowed Queen to carry on its business and to meet its obligations to its tenants. It was at the request and direction of Queen (or at least that of its agent, Avison) that Arcamm supplied Queen with temporary generators, the fuel to run them, and provided and connected replacement transformers. I conclude that it should be Queen, not Arcamm, which should assume those costs while Queen is engaged in a dispute with its own insurers over what expenses are covered by insurance.
[67] In short, Queen asserts that Arcamm was required to ensure that the de-energized transformers were properly stored in a de-humidified environment. For reasons given, I conclude that a determination of that issue - who may be liable for the damage caused to the de-energized transformers - is properly determined in the Aviva Subrogated Action, which names other parties who may be found liable, in whole or in part.
[68] I do not accept Queen’s submissions that simply because there is a multiplicity of proceedings, a decision on Arcamm’s SJM will create a risk of inconsistent or contradictory findings on key issues: I make no determination of Arcamm’s liability, if any, for the damaged transformers.
[69] Queen’s damages claim against Arcamm ought to be determined in the Aviva Subrogated Action and not used, as it is here, as a defence to payment of invoices rendered by Arcamm for services and materials in respect of which Queen has admitted it has no valid dispute.
[70] For clarity, a determination on this motion that Arcamm is entitled to payment of its invoices is intended to have no bearing at all on the determination of whether Arcamm has any liability to Queen for damage to the transformers and I make no such finding here.
[71] I conclude that there is no genuine issue for trial with respect to whether Arcamm is entitled to payment for the services and materials it provided in respect of the Property.
Who are the “owners” under the Act?
[72] Arcamm’s SJM seeks payment from both Avison and Queen. In its Lien under the Act, Arcamm identifies both Queen and Avison as owners. In its Reply Factum, Arcamm asserts that Queen and “Avison are intertwined and together satisfy the requirements of “owner” under the Act” , (at para. 21).
[73] Avison denies that it is an “owner” under the Act and that it contracted as agent for Queen. Queen also denies that it is an “owner” for the purposes of Arcamm’s claim and denies that it contracted with Arcamm.
[74] S. 1(1) of the Act defines an “owner” as follows:
“owner” means any person, including the Crown, having an interest in a premises at whose request and, (a) upon whose credit, or (b) on whose behalf, or (c) with whose privity or consent, or (d) for whose direct benefit, an improvement is made to the premises but does not include a home buyer;
[75] The Act also requires that an owner have an interest in land: Ravenda Homes Ltd. v. 1372708 Ontario Inc. et al., 2017 ONCA 834, at para. 29.
[76] It is undisputed that Queen is the registered owner of the Property.
[77] It is undisputed that Avison was the property manager for the Property.
[78] Avison’s connection to the Property and to Queen is contractual, through the REMSA. As such, I accept that Avison cannot also be an owner: 698147 Ontario Limited v Enescu et al., 2015 ONSC 6827, at para 43.
[79] At para. 3.1 of the REMSA, it specifically states that the Agent [Avison] shall have not right or interest in the Property…[and] shall be the agent of Owner”.
[80] The evidence on this motion is unequivocal: Queen is the sole registered owner of the Property. Avison has no interest in the Property. This evidence is supported by Queen: see, Cocov cross-examination, at qq. 164-175.
[81] I accept Avison’s assertion that it is not an “owner’ as defined under the Act.
[82] On this motion, Arcamm submits that it contracted with Avison and Queen and is entitled to judgment against both, based on contract.
[83] I conclude otherwise.
[84] Despite that Arcamm’s invoices were submitted to Queen, “c/o Avison”, on their face, these invoices make it clear that the invoice belongs to Queen.
[85] In his evidence, Arcamm’s principal, Harold Bartling, acknowledges that the owner of the Property is Queen; that the invoices went to Queen; that Avison was acting on behalf of Queen as the property manager; and that Queen was paying the bills (Transcript of Harold Bartling).
[86] That and the other evidence on this motion, supports a finding, which I make, that Arcamm’s contractual relationship was with Queen, as the owner of the Property, and that Arcamm knew, or ought to have known, that Avison, as property manager, was acting solely as Queen’s agent, and never expected, nor intended, that it would to be personally liable to pay Arcamm’s invoices.
[87] The evidence on this motion also supports a finding, which I make, that the invoices on which Arcamm seeks payment relate to services and materials requested by Queen; to Queen’s benefit; provided in a timely and competent manner; and fully approved by the requisite authorities.
[88] Thus, I conclude that the evidence establishes that Queen is an “owner” as defined under s.1(1) of the Act and that the “improvements” made to the Property by Arcamm, were at the request of Queen, albeit through Queen’s agent, Avison, upon Queen’s credit, on behalf of Queen, with Queen’s consent, and for the direct benefit of Queen, who was thereby able to meet its obligations to its tenants.
[89] In its defence to Arcamm’s claim, Queen denies that it retained Arcamm and that it was Avison who retained Arcamm in connection with the electrical failure and that any amounts that may be found due and owing to Arcamm, are, in fact, due and owing by Avison and/or Aviva, and others. In its defence, Queen also denies that it is an “owner” in respect of any improvement made to the Property. This latter allegation is in clear contradiction of the evidence before the court.
[90] Despite Queen’s pleadings, the ample record before the court on this motion leaves me with no doubt that Queen is an owner as defined under the Act and, as owner, is liable to Arcamm.
[91] Similarly, I have no hesitation in concluding that in its dealings with Arcamm and pursuant to the REMSA, Avison was acting as Queen’s agent and that Queen, not Avison, is liable to Arcamm in contract.
[92] I conclude that Avison is not liable to Arcamm either as an owner, which Avison is not, nor in contract: Avison did not retain Arcamm on its own behalf but solely as Queen’s agent.
Proper Invoices
[93] One of the arguments advanced by Arcamm on its SJM is that its invoices must be paid as submitted pursuant to the “prompt payment” provisions found at Part I.1 of the Act.
[94] I find otherwise. While there may be other reasons on which to find that that the prompt payment provisions do not apply, the starting point for my decision is that the invoices do not meet the strict definition of “proper invoices” under s. 6.1 of the Act.
[95] S. 6.1 of the Act defines a “proper invoice as follows:
“proper invoice” means a written bill or other request for payment for services or materials in respect of an improvement under a contract, if it contains the following information and, subject to subsection 6.3 (2), meets any other requirements that the contract specifies:
- The contractor’s name and address.
- The date of the proper invoice and the period during which the services or materials were supplied.
- Information identifying the authority, whether in the contract or otherwise, under which the services or materials were supplied.
- A description, including quantity where appropriate, of the services or materials that were supplied.
- The amount payable for the services or materials that were supplied, and the payment terms.
- The name, title, telephone number and mailing address of the person to whom payment is to be sent.
- Any other information that may be prescribed. 2017, c. 24, s. 7.
[96] Arcamm’s invoices fail to: (a) clearly set out the period during which services or materials were supplied. For example, Invoice Number 109146, dated July 31, 2021, states “Fuel consumption as of July 31, 2021” - thus it describes the end date for the supply of the fuel but not the period during which the fuel was supplied; (b) identify the authority, whether in the contract or otherwise, under which the services or materials were supplied; (c) specify the name, title, telephone number and mailing address of the person to whom payment is to be sent (emphasis added).
[97] By reasons of those failings, I find that Arcamm cannot rely on the prompt payment provisions under the Act.
No Dispute over the quality of Arcamm’s services or materials
[98] Mr. Ichelson of Avison was Arcamm’s direct contact with respect to the services and materials that are the subject of Arcamm’s claim.
[99] Queen’s principal, Mr. Cocov, had no direct dealings with Arcamm and relied upon Avison to secure and oversee contractors retained to restore power to the Property, and the repair and/or replacement of the related equipment. Queen was kept informed of and approved the quotes submitted by Arcamm and the services and materials that Arcamm supplied.
[100] After initially paying for the generator rental costs, Aviva then denied further payment. Queen, in turn, stopped paying Arcamm. Despite knowing that Aviva was denying coverage, Queen continued to use the generators supplied through Arcamm and, later, asked for and accepted Arcamm’s quote to supply replacement transformers. Queen approved Arcamm’s quotes, received the services and materials provided by Arcamm, but ultimately refused to pay Arcamm.
[101] At no material time did Queen take issue with the services and materials provided by Arcamm. This is confirmed in an internal email dated March 8, 2022, long after Arcamm had completed its work, between Mr. Ichelson and Mr. Cocov. Mr. Ichelson, who had personal knowledge of the services and materials supplied by Arcamm, confirmed to Mr. Cocov that “No one is disputing the work that was done and the quality of the repairs.”
[102] Mr. Ichelson swore an affidavit on November 8, 2022, replying to Mr. Cocov’s affidavit of October 27, 2022, which alleged, in part, that Avison was grossly negligent and in breach of its obligations under the REMSA and that Arcamm’s claim would not have been brought but for the “gross negligence and/or willful misconduct of” Avison. Only in his reply affidavit, does Mr. Ichelson allege that Arcamm’s preventative maintenance of the de-energized transformers was “deficient” in that “Arcamm did not protect the transformers from humidity damage even though their mandate was to undertake preventative maintenance of the transformers while they ordered new parts to complete repairs on the switch gear” (at para. 10).
[103] Mr. Ichelson’s statement may be relevant to the claims advanced in the Aviva Subrogated Action relating to the damage to the existing transformers but, in my view, it neither defeats, nor undermines, Arcamm’s SJM for payment on its invoices. Queen’s losses, if any, relate to the damage to the transformers, and Arcamm’s liability, if any, for such losses, remains to be determined in the Aviva Subrogated Action.
[104] At the risk of being repetitive, Arcamm’s liability to Queen respecting the transformers ought not to be decided in this action or by this court on Arcamm’s SJM but in the Aviva Subrogated Action.
[105] On motions for summary judgment, it is said that the parties “must lead trump or risk losing.” Applying that principle to the evidence put forth by Queen on Arcamm’s SJM, I would conclude that Queen has lost: the evidence put forth by Queen falls short of establishing liability on the part of Arcamm. For example, in his email to Mr. Cocov of March 8 2022, Mr. Ichelson, who had been authorized by Queen to deal with Aviva, confirmed that Aviva’s first engineer opined that the transformers’ failure was “a follow on result of the original claim” and Aviva’s second engineer opined that the transformers failed “due to age” and that the engineer retained by Queen’s opined that the report of the Aviva’s second engineer was a “a load of ‘bull---.” Nowhere in this candid email is it suggested that Arcamm is at fault.
[106] Another example in which the evidence put forth by Queen on this SJM falls short, is its acknowledgement that until Aviva took the position that Queen’s claim was not covered by insurance, Queen took no issue with the services and materials provided by Arcamm: Queen approved Arcamm’s quotes; submitted proof of loss claims to Aviva for payment of Arcamm’s invoices; and approved payment of Arcamm’s invoices from the funds received from Aviva: see, for example, the transcript of Mr. Cocov at pp. 82, 28, and 57.
[107] I have considered the evidence put forth on this motion, which I find allows me to make the following factual findings: (i) Avison represented to Arcamm that it was acting as Queen’s authorized agent and that it had authority to contract with Arcamm on behalf of Queen and to thereby bind and obligate Queen to pay Arcamm for services and materials; (ii) Queen was the owner of the Property; (iii) Avison was not an owner of the Property and at all times, was acting solely as Queen’s agent under the REMSA; (iv) Queen was fully aware of the fact that Avison had engaged Arcamm to supply the services and materials to the Property and for which Arcamm submitted invoices; (v) Queen: a) reviewed and approved the quotes submitted by Arcamm for the services and materials to be provided by Arcamm to the Property; b) and/or its directors, had no direct personal knowledge of the labour and materials supplied by Arcamm and relied upon Avison to ensure that the work performed by Arcamm was done properly and approved by the appropriate authority; c) at no time disputed the work that was done or the quality of the repairs performed by Arcamm; d) knew that Arcamm intended to, and did, submit invoices to Queen for payment in respect of the services and materials provided; e) benefitted from the services and materials provided by Arcamm, by which power was restored to the Property quickly and was maintained throughout the period during which the Property’s transformers were inoperable; and f) submitted proofs of loss to its own insurer, Aviva, in respect of labour and materials supplied by Arcamm, for which Arcamm submitted invoices.
No risk of inconsistent findings.
[108] As noted above, the essence of the Aviva Subrogated Action claim against Arcamm is that, between June 2021 and September 15, 2021, the de-energized transformers were exposed to high humidity, which caused them damage, necessitating their replacement. That claim is not advanced in this action. I neither need to make nor, in fact, do make any findings as to Arcamm’s liability on that issue. Therefore, I find that there is not a “clear risk” that my findings on Arcamm’s SJM might be inconsistent or contradictory with any findings in the Aviva Subrogated Action or the Queen Action.
Liability to Arcamm and Amount claimed
[109] Arcamm’s summary of the amounts owing on the invoices, including interest to November 16, 2022, are marked as Appendix “A” to these Reasons for Judgment.
[110] Based on the record before me, my findings of fact based on that record, and my application of the law to those facts, I find that Arcamm is entitled to payment from Queen, both as owner under the Act, and in contract, on its invoices which are listed in Schedule “C”.
[111] I also find that Arcamm is not entitled to payment from Avison; Avison is not an owner under the Act and is not liable in contract to Arcamm. I conclude that Avison was at all times acting as agent of Queen and not in its personal capacity.
Interest Amount
[112] Although the invoices include an amount for interest, the quotes submitted to Queen are silent on the payment of interest or the rate to be charged. As a result, I find that Arcamm’s entitlement to interest on the unpaid balance of its invoices is limited to the rate set out under the Courts of Justice Act, R.S.O. 1990, chap. C. 43, as claimed by Arcamm in the alternative.
[113] Where the quotes and/or invoices provide when payment is to be made, interest on the unpaid invoices is to be calculated from that date. For example, if the quote and/or invoice says “net 30 days”, interest is to run from day 31, calculated to the date of these reasons for judgment.
Further Submissions Required
[114] Arcamm is to prepare and serve Queen with its calculation of the principal and interest on each invoice, calculated in accordance with the above direction. If Queen agrees with Arcamm, then Arcamm is to submit its calculations to the court, which will be used as the judgment amount.
[115] If Arcamm and Queen cannot agree on the principal and interest calculations, each of them shall serve and file their calculations, with a brief explanation for that calculation, not to exceed two pages. Unless I request a brief attendance before me for oral submissions, the principal and interest amounts (i.e. the judgement amount) will be determined from the parties’ written submissions.
Costs of the SJM
[116] Arcamm was successful as against Queen and is presumptively entitled to its costs of the SJM from Queen.
[117] Arcamm was unsuccessful as against Avison, which is presumptively entitled to its costs of defending Arcamm’s SJM.
[118] The parties may make submissions as to which of Arcamm or Queen should be responsible to pay Avison’s costs of this SJM.
[119] The parties are urged to attempt to reach an agreement on costs, if they are unable to do so, costs submissions may be made as follows:
- Within 21 days of the date of the release of this decision, Arcamm shall serve Queen and Avison, and file with the court, its written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs, evidence of docketed time, and copies of any relevant offers to settle.
- Within 14 days of service of Arcamm’s costs submissions, Queen and Avison may serve and file their responding submissions, not to exceed three pages, double-spaced, together with their draft bills of costs, evidence of docketed time, and copies of any relevant offers to settle.
- Within 7 days of service of the responding submissions, reply submissions, not exceeding one page in length, may be delivered by any party.
- 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.
Justice Sheard Released: February 17, 2023
Appendix “A”
SCHEDULE "C" - SUMMARY OF AMOUNTS OWING
| Item | Amount | Location in Motion Materials |
|---|---|---|
| Amounts owing for materials and services provided as particularized in invoices submitted. | $965,223.34 | Exhibit "K" of the Bartling Affidavit and TAB 2 of Undertakings of Harold Bartling, dated November 28, 2022. |
| Storage of the two transformers (owing since November 2022) | $565.00 | Exhibit "K" of the Bartling Affidavit, pages 89 - 92. |
| Connection Cost paid to NPEI | $10,488.04 | Exhibit "G" of the Bartling Affidavit, page 61. |
| *Disposal of the two transformers (inclusive of HST). | $8,475.00 | Exhibit "T" of the Bartling Affidavit, page 145. |
| Interest (as of November 16, 2022) | $265,282.63 | TAB 2 (November 16, 2022, Statement of Account) to the Answers to Undertakings of Harold Bartling dated November 28, 2022. |
| TOTAL | $1,250,034.01 |
Arcamm Electric
6790 Davand Drive Unit #5 Mississauga, Ontario LST 2G5
4342 Queen ST Niagara Holdings Inc. c/o Avison Young Real Estate Management Services LP Simpson Tower 401 Bay St. Suite 1100 Mailbox 11 Toronto, Ontario M5H 2Y4
STATEMENT
| Statement Date | 11/16/2022 | Statement Date | 11/16/2022 |
|---|---|---|---|
PLEASE RETURN THIS PORTION WITH YOUR PAYMENT
AMOUNT REMITTED
| Invoice No. | Transaction Type | Transaction Date | Amount | Amount Due |
|---|---|---|---|---|
| Bill | 07/31/2021 | 183,342.20 | ||
| Payment | 09/02/2021 | -9546.30 | ||
| 109146 | 173,795.90 | |||
| Bill | 09/30/2021 | 106,608.72 | ||
| Payment | 10/20/2021 | -102220.51 | ||
| 109295 | 4,388.21 | |||
| 109296 | Bill | 09/30/2021 | 169,462.48 | |
| 109358 | Bill | 11/01/2021 | 106,608.72 | |
| 109359 | Bill | 11/01/2021 | 168,033.94 | |
| 109340 | Bill | 11/02/2021 | 279,875.01 | |
| 109350 | Bill | 11/03/2021 | 3,498.48 | |
| 109352 | Bill | 11/04/2021 | 2,440.80 | |
| 109353 | Bill | 11/04/2021 | 1,254.30 | |
| 109354 | Bill | 11/04/2021 | 2,384.30 | |
| 109355 | Bill | 11/04/2021 | 6,050.47 | |
| 109356 | Bill | 11/04/2021 | 19,903.93 | |
| 109368 | Bill | 11/10/2021 | 26,652.18 | |
| 109390 | Bill | 11/17/2021 | 874.62 | |
| 110087 | Bill | 11/01/2022 | 565.00 | |
| Interest | 264,717.63 | |||
| interest on balances overdue more than 30 days | ||||
| Total | 1,230,505.97 |
Terms: N30 DAYS 2% INTEREST PER MONTH COMPOUNDED MONTHLY ON OVERDUE ACCOUNTS (26.82% PER ANNUM)
| Age | Current | 31-60 | Over60 | Total Amount |
|---|---|---|---|---|
| 0.00 | 965,223.34 | 1,230,505.97 | ||
| Total | 265,282.63 |
COURT FILE NO.: CV-22-00060577-0000 DATE: 20230217
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Arcamm Electrical Services Ltd Plaintiff/Moving Party
- and –
Avison Young Real Estate Management Services LP and 4342 Queen St Niagara Holdings Inc. Defendants/Responding Party
REASONS FOR JUDGMENT ON PLAINTIFF’S SUMMARY JUDGMENT MOTION
L. Sheard J. Released: February 17, 2023
