COURT OF APPEAL FOR ONTARIO

CITATION: Accuworx Inc. v. Enroute Imports Inc., 2016 ONCA 161

DATE: 20160229

DOCKET: C61152

Gillese, Hourigan and Brown JJ.A.

BETWEEN

Accuworx Inc.

Plaintiff (Respondent)

and

Enroute Imports Inc., Sunora Foods Ltd., Vincent P. Pileggi, Pydel Properties Inc., The Sovereign General Insurance Company and Granite Claims Solutions Inc.

Defendants (Appellant)

Tamara Farber and Alexandra L. White, for the appellant

William A. Chalmers, for the respondent

Heard: February 23, 2016

On appeal from the order of Justice Silja S. Seppi of the Superior Court of Justice, dated September 18, 2015, with reasons reported at 2015 ONSC 5797, and from the costs order, dated October 30, 2015.

ENDORSEMENT

Introduction

[1] This is an appeal of the motion judge’s order dated September 18, 2015, granting summary judgment to the respondent Accuworx Inc. (“Accuworx”) on the basis of the equitable remedies of unjust enrichment and quantum meruit. The appellant, Pydel Properties Inc. (“Pydel”), also seeks leave to appeal the motion judge’s costs award.

[2] The claim arises from clean-up services undertaken by Accuworx, a remediation company, as a result of a spill of approximately 20,000 litres of canola oil owned by Sunora Foods Ltd. (“Sunora”) at the premises of Enroute Imports Inc. (“Enroute”). Pydel owns the property where Enroute was carrying on business. Enroute made a proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, and the action was stayed against it.

[3] The motion judge found that Pydel had been unjustly enriched by the clean-up services because its statutory and common law liability for the spill was eliminated. She ordered that Accuworx was entitled to $328,067.96 in quantum meruit compensation for the total amount of the services provided, and also ordered that Pydel pay costs of $63,517.90.

Pydel’s Submissions

[4] Pydel submits that the motion judge erred in finding that Accuworx met the test for unjust enrichment. Pydel concedes that it received the limited benefit of the clean-up of its property in the amount of approximately $16,000 worth of work, but argues that it received no direct benefit from the work performed on neighbouring properties. It also submits that it did not receive a negative benefit from the work performed on neighbouring properties because it was not inevitable that it would be subject to a clean-up order under the Environmental Protection Act, R.S.O. 1990, c. E. 19 (the “EPA”), or a claim from an affected party either at common law or pursuant to the statutory cause of action contained in s. 99 of the EPA.

[5] Pydel further submits that Accuworx did not suffer a corresponding deprivation because Accuworx still has an outstanding action against other parties who might be liable for the services rendered.

[6] In addition, Pydel advances two juristic reasons why it should maintain any benefit it received. First, Accuworx had no expectation of payment from Pydel. Second, Vince Pileggi, an officer and director of both Pydel and Enroute, was acting on behalf of Enroute and as agent for Sunora when he made the request for Accuworx’s services.

Analysis

[7] We would not give effect to any of these arguments.

[8] In our view, the motion judge did not err in finding that Pydel received a negative benefit. Although it is arguable whether Pydel had “control of the pollutant” and faced exposure on that basis, there is no doubt that as the owner of the property where the spill occurred, Pydel could be subject to a remediation order from the Ministry of the Environment and Climate Change (the “MOE”). This is especially the case given Enroute’s insolvency. The evidence established that Mr. Pileggi took steps to clean up the spill in order to minimize or eliminate the risk that the MOE would make a remedial order.

[9] There was clearly a corresponding deprivation as Accuworx has not been paid for its services. The fact that Accuworx may have a potential claim against other parties does not detract from this fact.

[10] We are also satisfied that there is no juristic reason why Pydel should maintain the negative benefit it received. With respect to the argument that Accuworx had no expectation of payment, a claim based on quantum meruit is not dependent on an explicit mutual agreement to compensate for the services rendered; it is sufficient if the services were furnished at the request, or with the encouragement or acquiescence, of the opposing party: Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2007 ONCA 324, 282 D.L.R. (4th) 697, at para. 99. In the present case, the request for the services was made by Mr. Pileggi who was an officer and director of both Pydel and Enroute.

[11] With respect to the argument that Mr. Pileggi made the request for Accuworx’s services on behalf of Enroute as agent for Sunora, we note that the request for services went beyond the area of the property occupied by Enroute and thus Mr. Pileggi had no authority to request those services as an officer and director of that company. Moreover, the motion judge considered the argument that Mr. Pileggi was an agent for Sunora and concluded that it did not alter the fact that the benefit was conferred on Pydel with the encouragement and acquiescence of its officer and director, Mr. Pileggi. That conclusion was amply supported by the evidence.

Disposition

[12] We see no error in the motion judge’s decision to grant summary judgment against Pydel. Nor do we see any error in the motion judge’s costs award and would decline to grant leave to appeal.

[13] For these reasons the appeal is dismissed, with costs to Accuworx fixed at $15,000, all inclusive.

“E.E. Gillese J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”