CITATION: Sayers Foods Ltd. v. Sayers, 2026 ONSC 1829
DIVISIONAL COURT FILE NO.: 238/24 JR
DATE: 20260326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ricchetti and Sutherland JJ.
B E T W E E N:
SAYERS FOODS LTD.
Kevin D. Sherkin and Richard MacGregor, for the Applicant
Applicant
- and -
GAY COMPANY LTD.
Faren Bogach and James de Melo, for the Respondent
Respondent
Heard in Writing: March 23, 2026
ENDORSEMENT
THE COURT:
[1] In para. 148(d) and (e) of our decision dated March 4, 2026 (2026 ONSC 918), we directed the parties to agree on the balance payable of the Determination after payment of the proceeds held in court. We seized ourselves of this issue if the parties were unable to agree. In footnote 17 (to para. 148), we provided the following guidance to the parties:
… the result of this application is that the Determination is in full force and effect. The [funds] paid into court stand as security for what is owed under the Determination, but do not affect calculation of what is owed. Calculation of what is owed shall be made based on the Determination, and funds held in court to the credit of this application shall be applied to the balance owed.[^1]
[2] The parties were unable to agree on the amount owing.
[3] We directed that (i) Gay Co. provide us with its calculation of the balance owing; and (ii) Sayers provide us with its calculation of the balance owing with a brief explanation of why it differs from Gay Co.’s calculation. We directed Gay Co. not to respond to Sayers’ submissions unless we subsequently directed otherwise.
[4] The Adjudicator determined that Sayers pay Gay Co. the principal amount of $667,667.14, plus interest at 11.2% running from April 5, 2024, plus interest of $17,907.77 to April 5, 2024.
[5] On September 3, 2024, this court stayed the obligation to pay in accordance with the Determination provided that Sayers paid $700,000 into court to the credit of this proceeding. The court stated (2024 ONSC 4832, paras. 14 and 15):
I do not have a precise calculation of the interest payable on the prompt payment order. I have rounded the amount of the order up to $700,000.00, to reflect accrued interest, and any issue about the precise interest calculation may be addressed by the parties before the panel, presumably on consent.
The requested stay is granted on the condition that the Moving Party pay $700,000.00 into court to the credit of this application within ten days.
[6] Sayers made the required payment on October 7, 2024.
[7] On March 4, 2026, we dismissed the application for judicial review and directed that the balance held in court, including any accrued interest, be paid out to Gay Co., on account of Sayers’ obligations under the Determination. We directed that any disparity in the amount paid out of court, and the balance owing under the Determination, be calculated and paid within seven days.
[8] The balance owing under the Determination is a simple calculation. The principal amount was $667,667.14. Interest accrues annually on that amount at 11.2% until the date of payment to Gay Co.
[9] The order for payment into court did not stop the interest clock. Interest has continued to accrue at 11.2% since April 5, 2024. Thus, the balance owing on the Determination is: $667,667.14 (principal) + $17,907.77 (interest to April 5, 2024) + $145,457.70 (interest from April 6, 2024 to March 17, 2026 [calculated at $204.87 per day x 710 days) = $831,032.61 + $204.87 per day after March 17, 2026.[^2]
[10] Income accrued on the $700,000 paid into court, and the balance was $727,650.58 as of March 12, 2026, as reflected on a statement prepared by the Accountant of the Superior Court. There is no indication that the funds held in court have yet been paid to Gay Co. Thus, there may need to be some small adjustment to reflect for any change in the balance as of the time the funds are paid out of court.
[11] Accordingly, the balance owed by Sayers to Gay Co. on account of interest and money earned on the funds held in court, is as follows:
$831,032.61 - $727,650.58 = $103,383.03 plus $204.87 per day from March 18, 2026 to the date the funds are paid out of court to Gay Co., subject to adjustment for the change in the amount held in court from $727,650.58.
[12] In its written submissions, Sayers argues that (i) this court does not have jurisdiction to make an order in respect to interest; and (ii) in the alternative, we should relieve Sayers of its interest obligations because it paid funds into court and because the process in this court has taken so long to conclude. We do not accept these submissions and for the reasons that follow find that the balance owing by Sayers to Gay Co. is as calculated in para. 11, above.
[13] We find that we do have jurisdiction to address interest on the basis of orders made by this court that interrupted Gay Co.’s entitlement to enforce the Determination. However, we conclude that, although we do have jurisdiction over interest accrued during the course of, and as a result, of the proceedings in this court, we would not exercise our discretion to vary the interest payable in accordance with the Determination.
[14] We were a bit puzzled by Sayers’ submission that we lack jurisdiction to vary interest payable. We would have thought that, if this court did not vary the interest payable, then the Determination would be enforceable in accordance with its terms, including its interest terms. That is, we would have thought that Sayers’ submission on this point would be contrary to its position that it should not be required to pay interest at 11.2% in accordance with the Determination. One possibility is that Sayers would locate the jurisdiction to relieve from the interest provisions in the Determination elsewhere. This argument is not developed in Sayers’ submissions. Had we entertained oral submissions, we would have probed this question with both sides. However, since we conclude that we do have jurisdiction, we do not find it necessary to explore this issue further with the parties. We would note, notwithstanding the abstract nature of this point, that the only basis in this case for which the interest position could be varied in light of our decision to uphold the Determination would be if something about the process in and/or orders made by the court in this proceeding should affect interest payable under this Determination. That is a question that should be decided by this court and not some other decisionmaker.
[15] Finally, Sayers submits that this court does not have original jurisdiction to make payment orders. That is true: this court is a statutory court and not a court of inherent jurisdiction. This court is not making an original payment order in this case but rather exercising its powers as the court with jurisdiction to entertain an application for judicial review of the Determination. Having dismissed the application, the Determination is enforceable in accordance with its terms. Having made an interim order than funds be paid into court to the credit of this proceeding, at Sayers’ request, this court has the jurisdiction to order payment out of court of those funds, in accordance with this court’s judgment in the application and the Determination. Settling the calculation of the balance owed under the Determination is within this court’s ancillary jurisdiction to bring an end to the issues between the parties respecting the Determination.
[16] On the merits of the interest issue, the starting point for analysis is the Determination itself. It provides for interest at 11.2%. This provision was not challenged in the application before us, and we did not vary interest in our application decision. We dismissed the application entirely, leaving the Determination enforceable in accordance with its terms. We note that 11.2% is the interest rate specified in the Contract, as found by the Adjudicator. Awarding interest at the Contract rate is in accordance with the Construction Act, ss. 6.9 and 13.19(3), which provide:
6.9 Interest begins to accrue on an amount that is not paid when it is due to be paid under this Part, at the prejudgment interest rate determined under subsection 127(2) of the Courts of Justice Act or, if the contract or subcontract specifies a different interest rate for the purpose, the greater of the prejudgment interest rate and the interest rate specified in the contract or subcontract.
13.19(3) Interest begins to accrue on an amount that is not paid when it is due to be paid under this Part, at the prejudgment interest rate determined under subsection 127(2) of the Courts of Justice Act or, if a contract or subcontract between the parties specifies a different interest rate for the purpose, the greater of the prejudgment interest rate and the interest rate specified in the contract or subcontract.
[17] Second, the amount ordered paid into court was security for Sayers’ obligations under the Determination and did not vary the terms of that Determination. This was stated in the order for payment into court and was reiterated in this court’s direction to the parties respecting calculation of interest. In our view, Sayers cannot be taken to be caught by surprise that it remains liable for interest at 11.2% pending payment.
[18] Third, an order for interest is primarily to compensate a party for the loss of use of money. Often, an order for payment of interest also recognizes that the payor has had the benefit of the use of the money during the period of non-payment. Sayers sought a stay of the prompt payment requirement, and the court ordered payment into court as a condition of the stay. It was open to Sayers to pay the money to Gay Co., rather than paying it into court: it was Sayers’ request and decision that Gay Co. not receive the benefit of the money pending decision on the application for judicial review. It is true that the court indicated in the decision that the approach adopted in this case should not be viewed as an authority in favour of ordering payment into court rather than prompt payment to the payee under the Determination. That does not change the fact that it was Sayers that sought relief from the court that had the effect of depriving Gay Co. of the benefit of the funds.
[19] The value of the loss of use of money varies depending on the position of the party entitled to receive the funds. The court does not undertake an evidence-based inquiry into this value. Rather, the Legislature and the common law provide the means for establishing an applicable interest rate. In this case, the parties agreed to an interest rate in the Contract, and there is no juridical reason it should not apply: to be made whole, under the Contract, Gay Co. is entitled to interest calculated at 11.2% until it receives payment.
Other Issues
(a) Draft Order
[20] Gay Co. provided us with a draft order. We have amended it to reflect this court’s decision in 2026 ONSC 918, and we have directed court staff to issue and enter that order and provide it to the parties. The parties may submit a second draft order reflecting this endorsement if they require a further formal order.
(b) Costs
[21] Gay Co. noted that this court made an order for costs in 2026 ONSC 918. There is no need for this court to address that issue further: the order for costs is not part of the Determination and is reflected in the court’s formal order in respect to the decision made in 2026 ONSC 918. Interest on the costs order runs at the rate prescribed by the Courts of Justice Act, and not the 11.2% rate that applies to the Determination.
“D.L. Corbett J.”
“Ricchetti J.”
“Sutherland J.”
Released: March 26, 2026
DIVISIONAL COURT FILE NO.:
DATE: 20260326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ricchetti and Sutherland JJ.
BETWEEN:
Sayers Foods Ltd.
Applicant
- and –
Gay Company Ltd.
Respondent
ENDORSEMENT
Released: March 26, 2026
[^1]: Sayers argues that this court’s decision set out at 2026 ONSC 918, para. 147 “is relief not available to be ordered by this Court” (Sayers Factum, para. 17). With respect, such a submission is not properly made to this court but rather is a matter for Sayers to pursue in a motion for leave to appeal to the Court of Appeal, if it is so minded.
[^2]: Sayers agrees with this arithmetic in its written submissions (Sayers Factum, para. XX).