DATE: 20050817
DOCKET: C39914 and C41583
## COURT OF APPEAL FOR ONTARIO
### FELDMAN, CRONK and LaFORME JJ.A.
B E T W E E N :
DEL RIDGE CONSTRUCTION INC.
James M. Regan and
Andrew Grayson
for the appellant and
respondent by way of
cross-appeal, The General
Plaintiff
Accident Assurance Company
(Respondent,
of Canada, and for
Appellant by way of cross-appeal)
Intra Architects Inc
- and -
Carol E. McCall for the
appellant Trinity Anglican
Church
THE GENERAL ACCIDENT
ASSURANCE COMPANY OF
CANADA, TRINITY ANGLICAN
CHURCH and INTRA ARCHITECTS
INC.
S. Blake Teichman
for the respondent and
appellant by way of cross- appeal, Del Ridge Construction
Inc.
Defendants
(Appellants,
Heard: February 17, 2005
Respondent by way of cross-appeal)
On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice dated March 28, 2003, reported at [2003] O.J. No. 1278.
### BY THE COURT:
### Background
[1] Part way through internal renovations and construction of an addition to the Trinity church, a fire destroyed the construction and part of the church. The fire marshall issued a stop work order, following which the contractor terminated the construction contract, relying on clause 7.2.2., and under clause 7.2.5, claimed for the cost of work it had performed together with a percentage for overhead and profit. It also sought to recover the amount claimed under an insurance contract placed by the contractor in accordance with the construction contract, under which both the owner and the contractor were named insureds.
[2] Disputes arose regarding, among other things, what if anything was owing to the contractor, whether the construction contract was terminated by the doctrine of frustration, whether the insurer owed any monies to the contractor under the policy in the circumstances and whether the amounts claimed by the contractor were unwritten extras or were work done outside the contract.
[3] The contractor approached the consultant under the contract in order to obtain a certificate certifying the amount of work done and unpaid. After the consultant issued the certificate, he learned that the owner and contractor did not agree about whether any money was still owing to the contractor, and after being served with the original Statement of Claim, he purported to withdraw the certificate.
[4] The contractor sued the insurance company for payment. The consultant, Intra Architect Inc., was also named as a defendant in the proceedings, but the contractor claimed no relief against it. The matter proceeded through examinations and motions to amend pleadings and was ready for trial. The contractor then brought a motion for summary judgment to enforce the certificate.
[5] The motion judge made a finding that the consultant was entitled to withdraw the certificate in the circumstances, and therefore denied summary judgment.
[6] However, the motion judge then went on to make determinations of law on the other legal issues raised in the action. Based on her findings, she ordered that the contractor was entitled to be paid an amount by the insurer; that the amount must be determined under the construction contract by a consultant; that the consultant who issued the certificate was no longer in a position to act as consultant under the contract; that the parties were therefore to appoint another consultant to determine the amount owing to the contractor; and, once that amount was determined and a new certificate issued, the motion for summary judgment could be renewed before the motion judge or another judge. Costs of the motion were left to be determined on renewal of the motion.
[7] The appellants appeal to this court from the order made by the motion judge. Although normally an order denying summary judgment is an interlocutory order that is appealable to the Divisional Court with leave, in this case the motion judge finally decided all the disputed issues in the case, leaving only the quantum to be determined. The order was therefore a final order and properly appealed to this court.
[8] On this appeal, the appellants seek an order setting aside the findings of the motion judge and sending the entire matter on for trial. The respondent cross-appeals on the basis that the motion judge erred by finding that the consultant was entitled to withdraw his certificate. The respondent submits that the only options open to the motion judge were to enforce the certificate or send the issue of the enforceability of the certificate to trial.
### Analysis and Conclusion
[9] The motion judge appears to have treated this summary judgment motion as a trial on the record and determined all issues of fact and law other than the issue of quantum. Ultimately, after a trial, the motion judge may be proved correct on all or some of the issues; however, where there are genuine issues for trial, the motion judge is required to send them on for trial.
[10] Some of the issues raised may well be issues of law, turning only on the interpretation of documents. However, at this stage and on this record, it is unclear whether that is so in respect of any particular issue. Furthermore, this was a motion for summary judgment on the certificate. Although the other issues in dispute would have been argued on some basis before the motion judge, it is unclear whether they were argued based partly on the factual record with factual issues to be determined.
[11] This matter is ready for trial. The pleadings have been finalized and discoveries are complete. In our view, the most expeditious and fairest result is for one trial judge to hear and decide all of the issues. Consequently, the order of the motion judge is set aside, and all issues are to be tried.
[12] In the circumstances, as both the appeal and cross-appeal were successful, there will be no costs of the appeal proceeding. The costs of the motion for summary judgment are to be determined by the trial judge.
Signed: “K. Feldman J.A.”
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”
### RELEASED: “KNF” August 17, 2005
minicounsel