COURT OF APPEAL FOR ONTARIO
CITATION: Curoc Construction Ltd. v. Ottawa (City), 2015 ONCA 693
DATE: 20151015
DOCKET: C60006
Gillese, Epstein and Roberts JJ.A.
BETWEEN
Curoc Construction Ltd.
Plaintiff (Appellant)
and
City of Ottawa
Defendant (Respondent)
Nigel McCready, for the appellant
Jeremy Wright, for the respondent
Heard: September 23, 2015
On appeal from the order of Justice Hugh R. McLean of the Superior Court of Justice, dated January 14, 2015.
Gillese J.A.:
OVERVIEW
[1] Curoc Construction Ltd. (“Curoc”) and the City of Ottawa entered into a contract under the terms of which Curoc was to (among other things) remove, refinish and replace vinyl floor tiling in the office areas of the City-owned property at the Walkley Yard in Ottawa. After Curoc had completed most of the work under the contract, it received information that there was asbestos in the flooring in the construction area.
[2] Curoc told the City and both sides agreed that all work at the Walkley Yard work site would stop. The work stoppage lasted for approximately one week, during which time, among other things, the City retained an asbestos containment contractor to investigate and co-ordinate the full clean-up of the work site and facility. Following that, the work site re-opened and Curoc completed the remainder of the work.
[3] Curoc started an action against the City in which it sought damages and declaratory relief for alleged breaches by the City of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”). In its claim, Curoc alleged that the City knew that asbestos was present at the Walkley Yard work site but, contrary to the requirements of the OHSA, the City failed to disclose that information to Curoc. As a result of the alleged breaches, Curoc failed to take the appropriate precautions when performing its work and Curoc’s president and certain employees (together, the “Employees”) were exposed to asbestos. For ease of reference, I will refer to these allegations of unprotected exposure to asbestos as the “Incident”.
[4] The City moved for summary judgment. It contended both that Curoc’s action was premature, in that Curoc had not actually sustained any damages, and that declaratory relief was inappropriate.
[5] Curoc brought a cross-motion for summary judgment seeking essentially the same relief claimed in the action.
[6] Before the motions judge, Curoc tendered evidence that it had suffered damages in the form of legal and administrative costs as a result of the Incident.
[7] The motions judge found that Curoc failed to meet its evidentiary burden on the matter of damages. He refused to exercise his discretion and make the declarations which Curoc sought. His refusal stemmed, in part, from a concern that the declarations might have an impact on the rights of the Employees – people who were not parties to the proceeding and were not before the court.
[8] By order dated January 14, 2015 (the “Order”), the City’s motion for summary judgment was granted and Curoc’s cross-motion was dismissed.
[9] Curoc appeals.
[10] For the reasons that follow, I would dismiss the appeal.
THE ISSUES
[11] Curoc submits that in making the Order, the motions judge erred by:
dealing with the exposure of the Employees to asbestos in only a cursory way;
failing to determine whether the City breached the OHSA and, if so, whether the City is liable civilly pursuant to s. 30(5) of the OHSA;
failing to find that Curoc had suffered damages, despite evidence that Curoc’s president spent time on administrative tasks related to the Incident and Curoc incurred legal costs in dealing with the Incident; and
finding that the test for declaratory relief had not been met.
ANALYSIS
The First Three Issues
[12] In my view, the first three issues are best dealt with together. The starting point is the motions judge’s finding that Curoc failed to adduce evidence sufficient to satisfy its burden in respect of loss or damages.
[13] Curoc’s claim is based on alleged breaches of the OHSA. There is no nominate tort of breach of statute in Canada: R. v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205 (S.C.C.), at pp. 227-28. However, the City concedes that in certain circumstances, s. 30(5) of the OHSA creates a statutory cause of action. For the purposes of this appeal, I will assume that s. 30(5) creates a statutory cause of action.
[14] Section 30(5) reads as follows:
An owner who fails to comply with this section is liable to the constructor and every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that the owner ought reasonably to have known of but that was not on the list prepared under subsection (1). [Emphasis added.]
[15] On a plain reading of s. 30(5), liability under it is dependent on Curoc (the constructor) suffering “loss or damages” as the result of the subsequent discovery on the project of asbestos, a designated substance.
[16] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial. As I have explained, loss or damages is a constituent element of the statutory cause of action under s. 30(5). Thus, once the motions judge found that Curoc had failed to discharge its burden on the matter of loss or damages, there was no genuine issue requiring a trial and it followed that summary judgment had to be granted.
[17] Therefore, the question becomes, did the motions judge err in finding that Curoc had failed to meet its burden in respect of damages?
[18] Curoc claims that it suffered loss or damages in the form of administrative and legal costs incurred in dealing with the Incident. I will deal with each claim in turn.
The Claim for Administrative Costs
[19] The claim for administrative costs relates to the work of Roc Cuconato, the President of Curoc.[^1] Mr. Cuconato spent approximately 60 hours attending to various administrative duties arising from the Incident. Curoc claimed $85 per hour for those services, for a total claim of $5,200.[^2] Curoc says that whether it actually paid that amount to Mr. Cuconato or not, it suffered a loss because the time which Mr. Cuconato spent dealing with the Incident could otherwise have been used in profitable work for Curoc.
[20] The motions judge rejected the claim for administrative costs. He found that there was no evidence that Curoc paid the amount claimed for administrative costs and there was no evidence as to the “exact nature” of the services provided. He further found the claim was in the nature of an estimate, rather than damages suffered.
[21] I see no basis on which to interfere with the motions judge’s findings in respect of the claim for administrative costs. On the contrary, those findings were fully open to him. The list of hours spent and tasks undertaken by Mr. Cuconato is vague and general, and lacks dates and particulars. Further, there was no evidence that Curoc paid any additional compensation to Mr. Cuconato for the administrative time spent dealing with the Incident nor was there evidence that the time he devoted to dealing with the Incident caused an actual loss to Curoc.
The Claim for Legal Costs
[22] Curoc’s claim for legal costs was based on its retention of legal counsel in order to determine how properly to respond to the Incident. Curoc said that prior to issuance of the statement of claim in this matter it incurred a liability of $5,155.48 for legal fees, taxes and disbursements. It adduced a “sample” legal bill for this sum.
[23] The motions judge found that the sample legal bill might or might not pertain to the actions taken by counsel as a result of the Incident. He was not satisfied that they had.
[24] There is force to Curoc’s submission that this finding was not open to the motions judge in light of the uncontroverted affidavit evidence of Susan Davidson, a law clerk with the law firm that Curoc had retained for advice relating to the Incident. Her evidence was that the fees and disbursements shown on the sample bill all arose from, and were related to, the Employees’ exposure to asbestos as a result of the Incident.
[25] That said, there is no evidence that the sample bill was ever paid or even rendered to Curoc. The sample bill is dated November 24, 2014, the same date that the affidavit of Susan Davidson was sworn. The invoice number is listed as “Sample”. In addition, there is a very real question as to how much of the sample bill relates to time spent on the present litigation. It is not clear to me that litigation costs can be properly characterized as loss or damages flowing from the alleged breach of s. 30(5) of the OHSA. For all of these reasons, Curoc did not prove loss or damages based on legal costs.
[26] In reaching my conclusions on the issue of damages, it is important to keep in mind that in responding to the City’s motion for summary judgment, Curoc was required to “put its best foot forward”. The motions judge was entitled to assume that the record before him contained all the evidence which Curoc would present if there were a trial: see Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96, at paras. 17-19.
[27] Having found that Curoc failed to meet its burden in respect of loss or damages, it was not necessary for the motions judge to give more detailed reasons about the Employees’ exposure to asbestos nor was he obliged to determine whether the City had breached the OHSA.
[28] Accordingly, I would dismiss the first three grounds of appeal.
The Fourth Issue
[29] Curoc sought declarations that: (1) the City, contrary to the provisions of the OHSA, caused the unprotected exposure of the Employees to asbestos materials at the Walkley Yard work site; (2) the City is liable for all damages incurred by Curoc and the Employees as a result of that exposure; and (3) the City indemnify Curoc for any claims made by the Employees for any loss or damages suffered as a consequence of the exposure.
[30] Curoc acknowledges that declaratory relief is discretionary but submits that the motions judge erred when he refused to exercise his discretion and grant the declarations. Specifically, Curoc contends that the motions judge erred by failing to apply the test for declaratory relief and, instead, speculated about the possible effects that such relief might have on third parties.
[31] I do not accept this submission.
[32] In Solosky v. The Queen, 1979 9 (SCC), [1980] 1 S.C.R. 821, the Supreme Court reiterated the principles which are to guide the court in the exercise of its discretion to grant declaratory relief. At para. 16 of Solosky, the Court noted two factors that will influence this exercise of discretion: (1) the utility of the declaration, if granted, and (2) whether the declaration will settle the questions at issue between the parties.
[33] The Court continued, at para. 16, by explaining that the first factor – the utility of the declaration – is directed at the “reality of the dispute”. It stated that “[i]t is clear that a declaration will not normally be granted … where the dispute has yet to arise and may not arise.”
[34] Curoc maintains that the first factor is satisfied because the declarations it seeks would decide the question of liability as between it and the City. In so doing, Curoc contends, the declarations would constitute the determination of a present right.
[35] I do not agree. In my view, the first factor is not met. Assuming for the purposes of this appeal that the Employees were exposed to asbestos at the Walkley Yard work site, as alleged, it is not known whether any of the Employees will ever become ill as a result of that exposure or, if they do, whether they will commence legal proceedings. The first factor is not met because the proposed declarations concern possible future legal proceedings and relate to future or hypothetical rights. This situation is precisely that anticipated in Solosky, at para. 16: the dispute has yet to arise and may not arise. At this point, the dispute is not real.
[36] Moreover, in my view, the motions judge made no error by taking into consideration the possibility that the proposed declarations could affect the rights of third parties, namely, one or more of the Employees. While the Employees were identified in the statement of claim, they were not parties to the action and they were not before the motions court. If one or more of the Employees subsequently becomes ill and attributes their illness to the Incident, they may choose to take legal proceedings. Any declarations made about the Incident might have an impact on the rights of the Employees and it was not mere speculation on the part of the motions judge to recognize that.
[37] Accordingly, this ground of appeal must also fail.
DISPOSITION
[38] For these reasons, I would dismiss the appeal with costs to the City fixed at $5,000, all inclusive.
Released: October 15, 2015 (“E.E.G.”)
“E.E. Gillese J.A.”
“I agree Gloria Epstein J.A.”
“I agree Lois Roberts J.A.”
[^1]: Mr. Cuconato’s name was spelt in different ways in the materials before this court. I have used the spelling of his name as it appears in his affidavit.
[^2]: 60 hours x $85 per hour = $5,100, but the total amount claimed for administrative costs in Curoc’s cross-motion was $5,200.