COURT FILE NO.: 97/08
DATE: 20080926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT - TORONTO
Jennings, Kiteley and Low JJ.
B E T W E E N:
Sunview Doors Limited
Appellant
- and -
Academy Doors & Windows Ltd., Vlasis Pappas, Vlasios Pappas and Olympia O’Brien
Respondents
Michael A. Handler, for the Appellant Mauro Marchioni and Brent Pearce, for the Respondents Pappas, Pappas and O’Brien
HEARD: June 5, 2008
By the Court:
[1] Following a trial, Brown J. granted judgment against Academy Doors arising from a contract for goods sold and delivered. He dismissed the plaintiff’s claim pursuant to s. 8 of the Construction Lien Act[^1] for an order finding the individual defendants liable for breach of trust. He also ordered the plaintiff to pay the costs of the individual defendants. The plaintiff appeals from that dismissal and from the award of costs.
Background
[2] Sunview carries on business as a manufacturer and supplier of custom sliding patio doors and related products to contractors.
[3] Academy Doors & Windows Ltd. (“Academy”) carried on business as a manufacturer, supplier and installer of windows, doors and curtain walls until it went out of business in October, 2006.
[4] Vlasis and Vlasios were the directors and officers of Academy. O’Brien is the sister of Vlasis and the cousin of Vlasios. She worked for Academy until August, 2006, approximately 2 months before it went out of business.
[5] Between September, 2005 and February, 2006, Academy placed nine purchase orders with Sunview for various quantities of custom made doors. None of the purchase orders or corresponding invoices issued by Sunview identified the project or location where the materials would be installed.
[6] As a matter of general practice, Sunview did not deliver its product to its customers. Academy picked up the product.
[7] Academy failed to pay Sunview for patio doors resulting in an amount due of $87,029.98.
[8] Sunview’s claim was against Academy for the price of goods sold and delivered and against the individual defendants pursuant to s. 8 of the CLA. In the statement of defence and counterclaim, the respondents admitted that Sunview entered into a series of agreements with Academy whereby Sunview agreed to supply patio doors for various construction projects.
[9] At the pre-trial conference in January 2007, the Master directed Sunview to deliver a Request to Admit by March 10, 2007 and directed that a response be delivered by March 20, 2007.
[10] Sunview did so. Academy did not respond. The individual defendants served a Response on March 28, 2007.
[11] The trial was heard on April 10, 11 and 12, 2007. Academy did not appear and was not represented. The counterclaim was abandoned.
[12] On the basis of the deemed admissions, the trial judge granted judgment against Academy for the amount claimed.
[13] At the outset of the trial, counsel for the plaintiff brought a motion for an order that the individual defendants were deemed to admit the contents of the Request to Admit by reason of their failure to respond by the deadline imposed by the Master. The trial judge refused to grant the motion.
[14] The evidence and submissions at trial focused on the claim against the individual defendants for judgment in the amount of $58,244.62.
Reasons for Decision
[15] The trial judge held that to prove a breach of s. 8 of the CLA, Sunview had to establish the existence of a trust by showing that: (i) Academy was a contractor or subcontractor; (ii) Sunview supplied materials to the projects on which Academy was a contractor; (iii) Academy received moneys on account of its contract price for those projects; and (iv) Academy owed Sunview money for those materials.
[16] The trial judge noted that once the trust is proved, the onus shifts to the contractor to demonstrate that payments made out of trust funds were to the beneficiaries of the trust, or fell within exceptions provided for in the CLA[^2].
[17] The trial judge pointed out that Vlasis and Vlasios had conceded that if Sunview proved the existence of a trust, they would not be able to show that they had complied with their obligations as trustees of trust funds. O’Brien took the position that she was not a trustee of any trust funds.
[18] The trial judge found that Academy’s general ledger disclosed that in the year before its demise the company preferred one creditor (O’Brien) to the detriment of others, including Sunview and that monies that should have been used to pay suppliers such as Sunview went to O’Brien. He went on to hold that although the evidence did not allow him to make definitive findings on the issue, the evidence raised strong suspicions that the family members involved in Academy let the company run into the ground in October, 2006 with the intention of opening a new business under a different name.
[19] With respect to the first criterion required to establish a trust, the trial judge found that Academy was a contractor within the meaning of s. 1(1) of the CLA in that it supplied materials to improvements.
[20] The reasons focused on the second criterion which the trial judge characterized as whether Sunview had supplied materials to particular projects on which Academy was a contractor. The issue on which this appeal turns is the trial judge’s finding on the second element that the supplier must intend that the material sold be used for the purposes of a known and identified improvement.
[21] The trial judge relied on the decision in Central Supply[^3]. He observed that if Academy had made proper documentary production, Sunview would have been able to identify and establish the specific improvements at which Academy installed the materials. However, that evidence would not have satisfied “the requirement imposed by the Court of Appeal in Central Supply for a section 8 claimant i.e., that a supplier must intend the material sold be used for the purpose of known and identified improvements”. While noting that Central Supply involved the retail sale of products to the public, the trial judge was unable to distinguish it on that basis. He articulated “strong concerns” about the gloss placed on s. 8(1) of the CLA in Central Supply in that it creates a restriction on the scope of the trust not apparent on the plain language of the section because it captured suppliers who sell to contractors who install their materials in improvements. Notwithstanding his reservations, he considered that he was bound by the decision in Central Supply. Since Sunview had failed to demonstrate that it had intended that its materials be used for the purpose of a known and identified improvement, the plaintiff failed to prove a trust had been established.
[22] In view of his finding on the second criterion, the trial judge did not consider the third or fourth criteria. However, Academy was deemed to have admitted that it received moneys on account of its contract prices for the projects. Furthermore, the judgment against Academy established that Academy owed Sunview money for the materials.
[23] Vlasis Pappas and Vlasios Pappas were directors and officers of Academy. In view of his finding that Sunview had not demonstrated that a trust arose under s. 8(1), the trial judge did not consider it necessary to determine whether O’Brien, as an employee of Academy, had effective control over it or its related activities. He held that the evidence clearly showed that she was actively involved in the accounting side of the operations. She handled accounts payable, accounts receivable and payroll but she did not have signing authority.
[24] In supplementary reasons, the trial judge ordered Sunview to pay each of the individual defendants costs in the amount of $2500.00. He reduced the amount that might otherwise have been ordered because of the failure of the defendants to make proper documentary disclosure.
Standard of Review
[25] This appeal is brought pursuant to s. 71 of the CLA. On a question of law, the standard of review is correctness.[^4]
The Statutory Framework
[26] Section 8 of the CLA establishes the criteria for the creation of a trust:
(1) All amounts,
(a) owing to a contractor or subcontractor, whether or not due or payable; or
(b) received by a contractor or subcontractor,
on account of the contract or subcontract price of an improvement constitute a trust fund for the benefit of the subcontractors and other persons who have supplied services or materials to the improvement who are owed amounts by the contractor or subcontractor.
(2) The contractor or subcontractor is the trustee of the trust fund created by subsection (1) and the contractor or subcontractor shall not appropriate or convert any part of the fund to the contractor’s or subcontractor’s own use or to any use inconsistent with the trust until all subcontractors and other persons who supply services or materials to the improvement are paid all amounts related to the improvement owed to them by the contractor or subcontractor.
[27] S. 13 imposes obligations as follows:
(1) In addition to the persons who are otherwise liable in an action for breach of trust under this Part,
(a) every director or officer of a corporation; and
(b) any person, including an employee or agent of the corporation, who has effective control of a corporation or its relevant activities,
who assents to, or acquiesces in, conduct that he or she knows or reasonably ought to know amounts to breach of trust by the corporation is liable for the breach of trust.
(2) The question of whether a person has effective control of a corporation or its relevant activities is one of fact . . .
[28] According to s. 13(3), when more than one person is found liable, those persons are jointly and severally liable.
[29] Lien rights are established in s. 14 as follows:
(1) A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials.
[30] Pursuant to s. 15, a lien arises and takes effect when the person first supplies services or materials to the improvement.
[31] Definitions in s. 1(1) that are relevant are the following:
“improvement” means
(a) any alteration, addition or repair to, or
(b) any construction, erection or installation on,
any land, and includes the demolition or removal of any building, structure or works or part thereof, and “improved” has a corresponding meaning.
“Materials” is defined in s. 1(1) as every kind of movable property
that becomes, or is intended to become, part of the improvement, or that is used directly in the making of the improvement, or that is used to facilitate directly the making of the improvement . . .
[32] In s. 1(2), materials are supplied to an improvement when they are
(a) placed on the land on which the improvement is being made;
(b) placed upon land designated by the owner or an agent of the owner that is in the immediate vicinity of the premises, but placing materials on the land so designated does not, of itself, make that land subject to a lien; or
(c) in any event, incorporated into or used in making or facilitating directly the making of the improvement.
Analysis
[33] The key issue is whether the trial judge erred in law in concluding, based on Central Supply, that a supplier must intend that the material sold be used for the purpose of a known and identified improvement before a trust arises.
[34] The reasons for decision in Central Supply were delivered by Abella J.A. But the decision was made by judges of the Court of Appeal sitting in their capacity as Divisional Court judges as is apparent from the following:
After the appeal was argued, the panel had concerns about whether the appeal should have been brought to the Divisional Court. Neither counsel raised the point before or during the argument. We sought written submissions from both parties on this issue and whether, if we were persuaded that the Divisional Court was the proper forum, the matter should be transferred to the Divisional Court or whether the panel should be reconstituted as one of that court for the purpose of adjudicating this appeal.
In Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), released after this appeal was heard, Rosenberg J.A. held that appeals concerning trust claims under Part II of the Construction Lien Act should be heard by the Divisional Court. Accordingly, this appeal should properly have been heard by the Divisional Court. However, I think that this is one of those rare cases, referred to in Villa Verde, where this panel should, with the designation of the Chief Justice of the Superior Court of Justice, sit as a panel of the Divisional Court for the purposes of this appeal and we have proceeded on that basis.[^5]
[35] Modern Tile was a small retail store in Niagara Falls that sold floor and wall coverings. The store had been operated for over 40 years, primarily by an elderly couple and in later years, by a third partner. In 1990, Modern Tile suffered economic losses that were exacerbated when the key owners were involved in a car accident. By 1997, Modern Tile was insolvent.
[36] Central Supply supplied floor and wall coverings to Modern Tile for almost 40 years. Deliveries from Central Supply to Modern Tile were made to the store, not to any of Modern Tile’s customers. All of Central Supply’s billing was to Modern Tile, but from time to time, Central Supply was asked to put the name of the customer for whom the goods were intended on the invoice so that Modern Tile could keep track of all the material that was supplied and match it up with its customer. Unlike when it was dealing with contractors, the invoices from Central Supply to Modern Tile never referred to a specific work site, improvement or premises where the product was ultimately to be incorporated.
[37] At trial a judgment was issued against Modern Tile but the claims against the personal defendants were dismissed. Central Supply appealed the dismissal. As indicated in paragraph 6, the issue on appeal was “whether moneys received by Modern Tile, from the retail sale of its product to members of the public,” constitute trust funds pursuant to the provisions of the CLA. If so, the related issue was whether personal liability should attach to the three owners.
[38] Abella J.A. noted that Part II of the CLA deals with trusts and Part III deals with liens. If the supply of services or materials is made without knowledge of or contact with the improvement to which the supply is made, no lien entitlement is created. Central Supply argued that the trial judge had erred in interpreting the trust provisions in Part II as having an analogous requirement. Modern Tile took the position that Central Supply supplied materials in the ordinary course of Modern Tile’s business as a retailer of such products or materials, without regard for the purpose for which they were to be used, and therefore no trust arose.
[39] Abella J.A. distinguished earlier authorities on the basis of an amendment to the legislation. Under the Mechanics’ Lien Act[^6] the definition of “material” made no reference to an “improvement”. She held that the significant difference in definitions in the CLA meant that the focus was on specifically designated sites and therefore earlier authorities no longer applied. At paragraph 12, she held as follows:
. . . like a lien remedy, there must be a specific, designated site or improvement before a trust may be imposed.
[40] The court concluded that the lien and trust provisions should receive a “synchronized interpretation” and noted the following:
The Construction Lien Act is designed to protect those who provide services or materials to a particular improvement or project, by requiring a contractor or subcontractor receiving payment under the contract to pay first those who provided services or materials on that project. Funds received by the contractor or subcontractor on account of the contract constitute a trust fund for the benefit of those who have supplied services or materials to the improvement by virtue of s. 8(1) of the Act. Failure to pay those suppliers who are owed money may constitute a breach of trust for which the directors or officers of a corporate contractor may be personally liable under s. 13.
Although liens and trusts represent discrete remedies under the Act, the scheme and purpose of the Act argue for a consistent approach between Parts II and III of the Act. The similarity in wording between s. 8(1), which delineates when a trust arises under Part II and in ss. 14 and 15, which outline when a lien is created under Part III, also supports a consistent requirement in both that there be an identifiable improvement before either a lien or trust is established. Under s. 8(1), a trust arises for the benefit of those who have supplied services or materials to an improvement. Similarly, ss. 14(1) and 15 require that before a lien arises, there must be services or materials supplied “to an improvement”.
[41] After quoting s. 14(1) as to the creation of a lien, Abella J.A. held as follows:
In my view, therefore, the Act requires that a supplier must intend that the material sold be used for the purposes of a known and identified improvement before a lien or trust arises. Where the supplier is selling material or services without any regard to the purpose or site for which the material is destined, it is deemed to be selling on the credit of the buyer alone, without access to the lien or trust remedies under the Act. The trust provisions of the Act, therefore, create a trust only for the benefit of persons who have supplied services or materials to the improvement, not for the benefit generally of persons who supply contractors. . .
The Act was not intended to apply to retailers who sell to members of the public in general and who have no direct connection to any improvement to any premises. Any other interpretation renders vulnerable to a trust obligation any retail store which supplies materials or services to members of the public, regardless of the ultimate use or destination of the product. Emphasis added
[42] The court then summarized the findings of fact by the trial judge that supported the conclusion that the trust provisions of the CLA did not apply. Modern Tile was a retail merchant that sold its products primarily to members of the public who picked up their ordered goods at the store. Central Supply was not interested in the location where the materials were incorporated or whether they would become part of a particular improvement. Central Supply looked to Modern Tile for payment as opposed to its practice when dealing with construction contractors. As a result of those findings of fact, Abella J.A. agreed that Central Supply had failed to prove that Modern Tile was a contractor or subcontractor in the construction industry; that Modern Tile received moneys on account of a contract price of an improvement; that Central Supply was a subcontractor or person that supplied materials to the improvement; that there existed any connection between the materials supplied and the “improvement” into which the products were ultimately incorporated; that when Central Supply sold its product to Modern Tile that it intended that the products be used for the purposes of some specific and identifiable improvement; that Modern Tile’s customers were “owners” having an “interest in a premises” and that there existed some specific and identifiable “premises”. That lead to the following conclusion:
- Central Supply has therefore failed to establish the crucial link, namely that the material was to be used in a particular improvement. There being no nexus between the material supplied and a specific improvement, the relationship between Central Supply and any “improvement” is too remote to justify the imposition of a trust.
[43] Citing Central Supply as emanating from the Ontario Court of Appeal, this decision is cited as authoritative:
It has now been held conclusively in Ontario that in order to be a beneficiary of the statutory trust under the Ontario Construction Lien Act, the claimant must prove that it knew and intended its supply of services or materials to be incorporated into a specific improvement at the time of supply.[^7] Emphasis added
[44] As the trial judge noted, Central Supply was followed in Airex Inc. v. Service[^8]. In that case, Pattillo J. considered a section 8 claim brought by a supplier of heating and ventilation equipment. Citing it as a decision of the Court of Appeal, he adopted paragraphs 19 and 21 from Central Supply. He reviewed the evidence to determine whether the defendant had received money on account of a specific improvement. He allowed claims where there was evidence that materials were supplied to an improvement and where the contractor had received funds on that account. He rejected claims where there was no evidence that materials were supplied for a specific improvement. But in rejecting those claims, he accepted evidence that the materials in the invoices represented “generic product” that could be used anywhere. While Pattillo J. adopted paragraph 19 of Central Supply, he did not advert to the issue of intent.
[45] At paragraph 33, the trial judge also referred to Kennedy Electric Ltd. v. Dana Canada Corp.[^9] a case involving a determination as to whether an assembly line was an “improvement”. In holding that it was not, the majority of the Divisional Court relied on the analysis of “improvement” in Central Supply. In dissent, Chapnick J. pointed out at para. 61 that Central Supply involved the retail sale of products to the public and was therefore distinguishable from the case before her. Both of the reasons for decision of that panel of the Divisional Court indicated that Central Supply was a decision of the Court of Appeal. Neither dealt with the issue of intent of the supplier.
[46] The following findings distinguish this case from Central Supply:
(a) Academy’s business focused on the retrofit and renovation of low rise rental and condominium units. Academy was found to be a contractor in the construction industry, namely that it supplied materials to improvements;
(b) Academy was deemed to admit that it had been paid for the custom patio doors that it ordered and picked up for various construction projects;
(c) Sunview manufactured and sold sliding and patio doors primarily to contractors who, in turn, installed the doors in new or retrofitted buildings or homes. The deemed admissions indicate that the materials supplied were as follows:
October 4, 2005 2 custom patio doors November 8, 2005 1 custom patio door November 21, 2005 58 custom patio doors November 22, 2005 1 custom patio door November 24, 2005 1 custom patio door December 7, 2005 12 custom patio doors and 2 frames December 10, 2005 69 custom patio doors February 6, 2006 4 custom patio doors, painted.
The evidence on behalf of the plaintiff was that the doors requested by Academy were a special size. In some cases, Academy indicated which way the door was to open, meaning that it was designated for a specific location. Vlasios Pappas confirmed in his evidence that the custom patio doors were manufactured for construction projects.
None of the items was a “stock” order. The materials supplied were intended to be incorporated into specific and identifiable improvements.
(d) There existed some specific and identifiable premises. While Sunview could not prove the location of the “known and identified improvements”, Academy clearly had that information because the materials had been ordered on that basis. At the time the materials were supplied, their destination was known.
(e) Academy produced a very limited number of documents prior to trial. The one contract with a customer that it did produce was for the replacement of doors and windows for a building in Brampton. Sunview was unable to determine the location to which other materials were delivered partly because of the failure to make proper documentary disclosure and partly because of the denials of knowledge by the individual defendants who gave evidence.
[47] Those circumstances are considerably different from the retail merchant dealing with members of the public. On that basis, the rationale in Central Supply that the seller must intend that its materials be used for the purposes of a known and identified improvement does not apply to this case. The trial judge was not bound by that principle.
[48] Because Sunview could not identify the specific improvement, it was not entitled to lien rights. But that ought not to foreclose Sunview from asserting a trust claim where the corporation is deemed to admit and the directors concede that they cannot show that they had complied with their obligations as trustees of trust funds. That admission and concession is sufficient to identify the funds on which the trust is impressed.
[49] We find that the trial judge erred in dismissing the trust claim on the basis of his finding that the intention of the supplier was determinative of the second criterion. We are satisfied that Sunview has established all elements of a trust and that the funds are impressed with a trust.
[50] Having said that, we are cognizant that this issue of the intention of the seller has been given considerable prominence since the Central Supply decision. Although it is not necessary to achieve a result in this case, we are compelled to express an opinion on that point.
[51] This panel of the Divisional Court has co-ordinate jurisdiction to the panel in Central Supply. We respectfully disagree with the conclusion reached in that case that there must be synchronization between the lien provisions and the trust provisions in the CLA in that, in both cases, the supplier must establish intent that materials be used for the purposes of a known and identified improvement. There is no language in s. 8, s. 14 or s. 15 that suggests that intent is a requirement. Nor does the definition of “improvement” or s. 1(2) refer to intent. Indeed, the only reference to intent is found in the definition of “materials” in s. 1(1) where intent is an alternative basis for making a claim based on use, not on destination.
[52] In Central Supply, the facts involved a retail situation involving “generic products”. The trial judge was not persuaded that Modern Tile was a “contractor” or that the materials had been incorporated into an “improvement”. That was sufficient basis to reject the trust claim. It was unnecessary to the decision in Central Supply to assert, as the Court did in paragraph 19[^10], that intention of the seller was a prerequisite.
[53] As the trial judge in the case before us observed, requiring that the seller have such intent puts an unwarranted gloss on s. 8(1) that is not apparent on the plain language. Nor is it necessary. Indeed, imposing a subjective element into Parts II and III of the CLA which otherwise import objective elements was unfortunate.
[54] We have found that Central Supply is distinguishable on the facts. However, had we been unable to distinguish it, we would not have applied its conclusion that the supplier must have intended that its materials be incorporated into a specific and identifiable improvement in order to attract a trust remedy.
[55] We turn to a consideration as to whether the individual defendants are liable. Pursuant to s. 13(1), as directors of the corporation, Pappas and Pappas are liable since they had conceded that they could not fulfill the burden on them to show that they had complied with their obligations as trustees.
[56] The situation with respect to O’Brien is somewhat different. The plaintiff asserts that she was a person who had effective control of the corporation or its relevant activities who assented to or acquiesced in conduct that she knew or reasonably ought to have known amounted to breach of trust by the corporation.
[57] At paragraph 37, the trial judge held that it was not necessary for him to make a determination with respect to O’Brien because the plaintiff had failed to demonstrate that a trust arose. At paragraph 38, the trial judge found as follows:
Nevertheless, I would observe that the evidence clearly showed that Ms. O’Brien was actively involved in the accounting side of Academy’s operations. She handled the company’s accounts payable, accounts receivable, and payroll, but she did not have signing authority. Although she attempted to portray herself as playing second fiddle to the bookkeeper who came in weekly, Vlasios Pappas testified that he relied on Ms. O’Brien to reconcile the company’s accounts and to prepare cheques that reflected what was properly owing by the company. Vlasis Pappas testified that he assumed that if his sister made up a cheque, there must have been enough money in the company’s account.
[58] As indicated above, the trial judge had noted the concession made by Pappas and Pappas that, if the plaintiff established that a trust arose, they would not be able to show that they had complied with their obligations. At paragraph 17, he found as follows:
This was an appropriate concession to make in light of the evidence tendered at trial. Academy’s general ledger showed that during the period September 1, 2005 to August 31, 2006 the company paid Ms. O’Brien approximately $150,000 in excess of her regular salary payments. Ms. O’Brien conceded that she received closer to $195,000 in payments from Academy during that period, but she explained them as repayments of shareholder loans that she had made to Academy. However, the general ledger for that period only recorded $7,500 in advances from Ms. O’Brien to the company, and Ms. O’Brien did not produce any other documentation evidencing shareholder loans by her to the company. Assuming for purposes of argument that Ms. O’Brien in fact did lend a large sum of money to Academy, at a minimum Academy’s general ledger disclosed that in the year before its demise the company preferred one creditor – Ms. O’Brien – to the detriment of others, including Sunview, and that monies that should have been used to pay suppliers such as Sunview found their way instead to Ms. O’Brien.
[59] As counsel for the appellant pointed out, there was other evidence with respect to O’Brien’s role. The corporate secretary and managing director of Sunview gave evidence that O’Brien had told him that Sunview would be paid as soon as Academy received some cheques from the projects that they had put the doors in. O’Brien did not contradict that evidence. Furthermore, in July 2006, O’Brien incorporated Magnum Windows & Doors Ltd. to carry on a business similar to that of Academy. She was president of that company. She leased space in January 2007.
[60] Pursuant to s. 134 of the Courts of Justice Act[^11] an appellate court may make any order or decision that ought to or could have been made. O’Brien was a shareholder and a person in charge of payables, receivables and payroll. She received almost $200,000 from the corporation at a time when she had to know, by reason of her responsibilities, the extent to which suppliers were owed money. On the basis of the findings of fact made by the trial judge, we find that O’Brien had effective control of the accounting activities of the corporation and she knew or reasonably ought to have known the payments to her constituted a breach of trust. For that reason, judgment should issue against her.
Request to Admit
[61] In January 2007, the Master had established a timetable that required the defendants to respond to the plaintiff’s Request to Admit by March 20, 2007 The individual defendants responded 8 days late. The trial judge refused the plaintiff’s motion that the individual defendants were deemed to make the admissions by reason of their failure to meet the deadline imposed. The plaintiff appealed from that decision.
[62] Rule 51.03(2) provides that a party that has failed to respond to a request to Admit within the required time shall be deemed to admit the truth of the statements in the Request to Admit. We agree with the respondents that the trial judge had discretion under rule 2.01(1)(b) to extend the time for responding. We are not persuade that he erred in so doing.
Appeal as to Costs
[63] Having allowed the appeal as against the individual defendants, the award of costs in favour of each of them must also be set aside.
ORDER TO GO AS FOLLOWS:
[64] The appeal is allowed. Judgment shall issue jointly and severally against Vlasis Pappas and Vlasios Pappas and Olympia O’Brien in the amount of $58,244.62.
[65] Unless counsel are able to agree, submissions in writing as to pre-judgment interest, post-judgment interest, costs of the trial and costs of the appeal shall be made as follows: within 30 days of release of these reasons, by counsel for the appellant; within 15 days thereafter, by counsel for the respondent; within a further 15 days, reply submissions if any.
Jennings J.
_________________________ Kiteley J.
Low J.
Released: September 26, 2008
[^1]: R.S.O. 1990, c. C.30 [^2]: St. Mary’s Cement Corp. v. Construction Ltd. (1997), 32 O.R. (3d) 595 (Gen.Div.) at pages 600-601 [^3]: Central Supply Co. (1972) Limited v. Modern Tile Supply Co. Ltd., [2001] O.J. No. 3575 (Div.Crt) [^4]: Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8 [^5]: Notwithstanding this clarification, subsequent cases and texts refer to this as a decision of the Court of Appeal. [^6]: R.S.O. 1980, c. 261 [^7]: Bristow, Glaholt, Reynolds and Wise. Construction Builders and Mechanics’ Liens in Canada 7th edition (Toronto, Carswell 2005) s.9.3.2 [^8]: [2007] O.J. No. 580 [^9]: [2006] O.J. No. 972 (Div. Ct.) [^10]: Infra para 41 [^11]: R.S.O. 1990, Chap. C.43