DATE: 20020111
DOCKET: C36961
COURT OF APPEAL FOR ONTARIO
RE:
SUTHERLAND-SCHULTZ INC. (Appellant) – and – AZURIX NORTH AMERICA, THORBURN PENNY LIMITED, J AND B ENGINEERING INC., and COMSTOCK CANADA LTD. (Respondents)
BEFORE:
MOLDAVER, SHARPE, SIMMONS JJ.A.
COUNSEL:
James A. LeBer for the Appellant
Mervyn D. Abramowitz for the respondent
HEARD:
January 8, 2002
On appeal from the order of Mr. Justice Thomas G. Zuber dated August 13, 2001.
E N D O R S E M E N T
[1] In concluding that the respondent Comstock Canada Inc. (“Comstock”) was entitled to summary judgment dismissing the appellant’s claim against it, the motions court judge made two crucial findings. With respect to the claim framed in terms of inducing breach of contract, the motions court judge concluded that all of the material filed made it clear that if there was a breach of contract between the appellant and Thorburn Penny Ltd. (“TPL”), the breach had already occurred before Comstock was approached. With respect to the claim framed in terms of assisting the breach of a fiduciary duty or receiving the benefit of a breach of fiduciary duty, the motions court judge found that there was nothing more to the relationship between the appellant and TPL than that of contractor and sub-contractor submitting a bid.
[2] We respectfully disagree with the motions court judge’s conclusion that the respondent demonstrated that there was no triable issue on these two crucial points.
[3] With respect to the timing of the alleged breach of contract, TPL had submitted its revised bid to the City on the basis that the appellant would do the installation. Before notifying either the appellant or the City (as it was required to do by the terms of the bidding process) of any change in this arrangement, TPL approached Comstock. In our view, a trier of fact could infer from the evidence that TPL did not terminate its relationship with the appellant until it had secured the participation of Comstock in its bid. As Comstock had participated in the presentation of a competing bid, Comstock was fully familiar with the terms and requirements of the bid.
[4] With respect to the nature of the appellant's involvement in the TPL bid and the possibility of extra-contractual duties arising therefrom, there was evidence of extensive participation and contribution made by the appellant to the development of the design for the project. In our view, this evidence gave rise to a triable issue as to whether the appellant was, as the motions court judge found, in the position of an ordinary subcontractor, or whether in view of the nature of the appellant's involvement as a member of the design-build team, extra-contractual duties arose. Again, Comstock’s familiarity with this specific design-built project is relevant here. While there are significant legal hurdles for the appellant to overcome on this aspect of the claim, the claim based on inducing breach of contract is proceeding to trial and, in our view, it would not be appropriate at this stage to preclude the appellant from proceeding to trial on this theory as well.
[5] As it is our view that competing inferences could be drawn from the material, we conclude that the respondent failed to show that there is no triable issue. Accordingly we would set aside the summary judgment dismissing the respondent’s claim so as to permit the matter to proceed to trial.
[6] The appellant is entitled to its costs of the appeal. The appellant says that if successful it should be awarded solicitor client costs of the motion for summary judgment. We do not accept this submission. Although ultimately the motion has been unsuccessful, it was nevertheless reasonable. In the circumstances of this case, it is our view that costs of the summary judgment motion should be in the cause.
“M.J. Moldaver J.A.”
“Robert J. Sharpe J.A.”
“J.M. Simmons J.A.”