Court of Appeal for Ontario

Date: June 7, 2019 Docket: C66049 Judges: Tulloch, Roberts and Miller JJ.A.

Between

G. Cooper Equipment Rentals Limited Plaintiff (Respondent)

and

2208011 Ontario Limited o/a Trifield Construction, Trifield Construction Management Corp. o/a Trifield Construction, Sandy Goodman, Aaron Goodman, and Sari Goodman Defendants (Appellants)

Counsel

Vanessa A. Ibe, for the appellants

Whitney Abrams, for the respondent

Heard and released orally: June 7, 2019

On appeal from: the judgment of Justice Jill M. Copeland of the Superior Court of Justice, dated September 19, 2018.

Reasons for Decision

[1] The respondent commenced an action against the appellant and others for breach of contract and breach of trust under the provisions of the Construction Act, R.S.O. 1990, c. C-30. The action was brought under the simplified procedure and the respondent obtained a judgment against the appellants on a summary judgment motion.

[2] The appellants argue that the motion judge erred in determining that there was no genuine issue before her requiring trial. The appellants more or less repeat the arguments they advanced before the motion judge, arguing that the motion judge lacked the proper record to decide the issues, particularly since cross-examination was not available under the simplified procedure.

[3] The appellants argue that the litigation turned on findings of credibility, specifically the credibility of Mr. Goodman in denying that "Trifield Construction" had been listed as a party to the Credit Application and Agreement when he signed it. The resolution of this issue, the appellants argue, required cross-examination or examination for discovery.

[4] The appeal is without merit. The motion judge gave careful reasons for the findings that she made, which were supported by the evidence that was before her. The motion judge rejected the appellants' evidence, which was contradicted by the documentary evidence as well as the conduct of the parties in acting in concert in the construction project, using the equipment supplied by the respondent and receiving construction funds. She found that 2208011 Ontario Limited had a subcontracting relationship with Trifield Construction Management Corp. and that Mr. Goodman had the requisite knowledge of the transactions and assented and acquiesced in them.

[5] The motion judge was entitled to make these findings, and her factual findings are entitled to deference.

[6] The appeal is dismissed. The respondent is entitled to its costs fixed in the amount of $4,000, inclusive of disbursements and HST.

"M. Tulloch J.A."

"L. B. Roberts J.A."

"B.W. Miller J.A."