COURT OF APPEAL FOR ONTARIO

CITATION: Halton BMAC Mechanical Inc. v. Design Build Inc., 2014 ONCA 214

DATE: 20140324

DOCKET: C54521

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Halton BMAC Mechanical Inc.

Plaintiff (Respondent)

and

Design Build Inc., Design Build Inc. 2007 and Nagy M. Baky

Defendants (Appellants)

M. Michael Title, for the appellants, Design Build Inc. 2007 and Nagy M. Baky

J.B. Eakins, for the respondent

Heard: March 17, 2014

On appeal from the judgment of Justice Jane A. Milanetti of the Superior Court of Justice, dated September 29 and 30, 2011.

ENDORSEMENT

[1] The respondent commenced this action for payment for work done pursuant to purchase orders issued in a construction project. At trial, the dispute centred primarily on whether Design Build Inc. or the appellant Design Build Inc. 2007 contracted with the respondent to perform the work.

[2] The appellant, Nagy Baky, is the principal and sole director of both Design Build Inc. and Design Build Inc. 2007. Mr. Baky, who represented himself and the two corporations at trial, conceded that money was owed to the respondent. However, he disputed the amount and who bore the responsibility for payment. He took the position that Design Build Inc. 2007 was responsible.

[3] The trial judge found that the total amount of the contract was $305,299.25, and that a balance of $133,755.40 remained outstanding. The trial judge held that one deficiency was supported by the evidence and concluded therefore that the respondent had established an outstanding debt of $132,807.77. This aspect of the judgment is not challenged.

[4] The dispute over who was obligated to pay the respondent arose primarily out of the fact that Design Build Inc.’s certificate of incorporation had been cancelled by the Companies Branch of the Ministry of Government Services on August 14, 2008. Two of the purchase orders totalling approximately $73,000, had been issued after the dissolution of Design Build Inc. The trial judge found Design Build Inc. 2007 and Mr. Baky personally liable for $73,699.50 - the amount owing under the two purchase orders issued after the dissolution of Design Build Inc. She found Design Build Inc. and Design Build Inc. 2007 liable for $59,108.77 – the amount under the purchase orders issued before the dissolution of Design Build Inc.

[5] The day after the trial judge gave her reasons for judgment and in the course of submissions concerning costs, Mr. Baky applied to have the evidence re-opened to allow him to tender the articles of revival of Design Build Inc. that he claimed had been issued on September 1, 2011.

[6] The trial judge refused to re-open the trial stating “I don’t think I have the latitude to do that at this stage of the game. I gave my judgment yesterday, and we’re here to do costs.” She later stated more formally in her reasons, “I will not re-open, given that the information which [Mr. Baky] seeks to present could have and should have been available for presentation at trial.”

[7] Mr. Baky contends that the trial judge erred by not allowing the case to be re-opened to permit consideration of that evidence.

[8] We disagree.

[9] Pursuant to rule 52.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to re-open the trial to hear additional evidence the appellant had to establish two points: (1) that the evidence would probably have altered the judgment and (2) that the evidence could not with reasonable diligence have been discovered sooner. See Becker Milk Co. Ltd. v. Consumers’ Gas Co. (1974), 1974 CanLII 545 (ON CA), 2 O.R. (2d) 554 (C.A.) at 557 and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, 204 D.L.R. (4th) 542.

[10] We see no error in the trial judge’s conclusion that the second part of the test to re-open the evidence after trial had not been met.

[11] There was no evidence at trial as to why the articles of revival were not before the court. Mr. Baky stated that because he was unable to pay his account for legal fees, his previous lawyer had refused to release the articles of revival to him. However, in the statement of claim issued in May 2010, the respondent pleaded the cancellation of the certificate of incorporation of Design Build Inc. Mr. Baky had had ample time to revive the company and obtain the documentation to prove its revival.

[12] Although the trial judge’s reasons were brief, she was obviously of the view that there was no miscarriage of justice. Moreover, the record provides additional insight as to why the trial judge exercised her discretion as she did. Throughout the trial, the trial judge repeatedly admonished Mr. Baky for his failure to adduce, in a timely way or at all, evidence in support of the various positions he was taking. Mr. Baky’s attempt to tender evidence about the corporate status of Design Build Inc., after judgment had been rendered, was part of a pattern of inattention about which he had been warned.

[13] In 671122, at para. 60, Major J. acknowledged the importance of what was said in Clayton v. British American Securities Ltd., 1934 CanLII 229 (BC CA), [1934] 3 W.W.R. 257 (B.C.C.A.), at p. 295, that: “[the trial judge] would of course discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof.”

[14] A trial judge’s exercise of discretion concerning whether to allow a trial to be re-opened is entitled to considerable deference: 671122, at para. 60. We see no reason to interfere.

[15] Lastly, we note that at the commencement of the hearing, counsel for Design Build Inc. 2007 advised that it was not challenging the judgment against it.

[16] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $9,000 inclusive of HST and disbursements.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”