CITATION: Pollard Windows Inc. v 1736106 Ontario Inc., 2019 ONSC 5361
DIVISIONAL COURT FILE NO.: DC-19-004
DATE: 20190919
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
In the matter of the Construction Lien Act
D.L. CORBETT, F.B. FITZPATRICK, and F.L. MYERS JJ.
B E T W E E N:
POLLARD WINDOWS INC.
Plaintiff / Responding Party
Derek A. Schmuck and Santiago H. Costa, for the Respondent
- and -
1736106 ONTARIO INC., ANDREW FERRI, NIAGARA HOME BUILDERS INC. carrying on business as NIAGARA HERITAGE HOMES and STEVECO ENTERPRISES INC.
Defendants
Kris Hutton, for the Appellant 1746878 Ontario Inc.
Read at Toronto: September 16, 2019
REASONS FOR DECISION
F.L. MYERS J.:
[1] In the decision dated August 19, 2019, reported at 2019 ONSC 4859, the court made the following direction concerning one remaining issue:
[86] 1746878 Ontario Inc. appealed the costs order made by Ramsay J. on January 30, 2019 in relation to the priorities hearing. As 1746878 Ontario Inc. did not seek leave to appeal under s.133(b) of the Courts of Justice Act, it is not entitled to appeal the costs order independent of the merits. With the dismissal of the appeal from the priorities order above, there is no proper appeal of the costs order remaining, it appears that the appeal ought to be quashed. 1746878 Ontario Inc. may deliver no more than three pages of submissions within ten days of the release of these reasons if it opposes the quashing of the last appeal. If 1746878 Ontario Inc. delivers submissions, Pollard Windows may respond within a further ten days with no more than three pages of submissions.
[2] 1746878 Ontario Inc. has delivered written submissions and argues that there is no requirement for it to obtain leave to appeal because its costs liability arose under an order made under the Construction Lien Act rather than the Courts of Justice Act. However, s.67(3) of the Construction Lien Act that applies to this action provides:
Application of rules of court
(3) Except where inconsistent with this Act, and subject to subsection (2), the Courts of Justice Act and the rules of court apply to pleadings and proceedings under this Act.
[3] Based on this section, the requirement to obtain leave to appeal from costs orders in s.133(b) of the Courts of Justice Act applies in lien actions unless it is inconsistent with the Construction Lien Act. 1746878 Ontario Inc. argues that imposing a requirement to obtain leave to appeal from costs awards is inconsistent with the right of appeal from judgments generally provided by s.71(1) of the Construction Lien Act.
[4] I disagree. 1746878 Ontario Inc. had an appeal as of right on the merits of the judgment granted by Ramsay J. That appeal included an appeal of the costs decision in the event that the decision on the merits was overturned. 1746878 Ontario Inc. did not require leave to appeal the costs order as part of its appeal of the substance of the judgment. However, it now seeks to appeal the costs order independent of the substance of the judgment granted by Ramsay J. In such circumstances, this court has previously applied the leave requirement to costs awards in lien actions: AACR Inc. v. Lixo Investments Limited, 2018 ONSC 2774 (Div Crt) and Bellissimo Excavating Ltd. v. Ding, 2004 CarswellOnt 5401 (Div Crt),
[5] It is well understood that the Construction Lien Act and, after the recent amendments, the Construction Act are intended to provide a summary process for the earliest, efficient resolution of construction claims. I see no inconsistency between s.71(1) providing an appeal as of right from judgments, that includes the right to challenge costs awards that depend on the outcome of the appeal, and the application of s.133(b) of the Courts of Justice Act, that imposes a requirement to obtain leave to appeal where a party wishes to appeal a costs award independent of the merits of the judgment. Reading s.71(1) otherwise would be contrary to the purpose of the statute to provide an efficient, summary process, with one appeal as of right focused on the merits.
[6] In my view therefore, 1746878 Ontario Inc. required leave to appeal in order to appeal the costs award independent of the appeal of the merits of the priorities hearing. As leave was neither sought nor obtained, it follows that the appeal is not properly before the panel and it is quashed.
F.L. Myers J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
F.B. Fitzpatrick J.
Release Date: September 19, 2019
CITATION: Pollard Windows Inc. v 1736106 Ontario Inc., 2019 ONSC 5361
DIVISIONAL COURT FILE NO.: DC-19-004
DATE: 20190919
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
POLLARD WINDOWS INC.
Plaintiff (Respondent)
– and –
1736106 ONTARIO INC., ANDREW FERRI, NIAGARA HOME BUILDERS INC. carrying on business as NIAGARA HERITAGE HOMES and STEVECO ENTERPRISES INC.
Defendants
REASONS FOR DECISION
F.L. Myers J.
Released: September 19, 2019