COURT FILE NO.: CV-09-389433
DATE: 20120827
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AF Industries Limited Liability Corporation c.o.b. as Flom LBS Consulting
Plaintiff
– and –
Complete Innovations Inc.
Defendant
Michael Simaan, for the Plaintiff
James Jagtoo, for the Defendant
HEARD: June 25 – 29, 2012
reasons for judgment
POLLAK J.
Introduction
[1] Mr. Flom is the principal of the Plaintiff, AF Industries Limited Liability Corporation, c.o.b. as Flom LBS Consulting (“AF”). AF contracted with the Defendant, Complete Innovations Inc. (“CI”), (whose principal is Mr. Lourakis), to provide Services as defined in a written agreement (“the Agreement”). This action by AF is for fees claimed to be owing pursuant to the Agreement. The amounts claimed are set out in an invoice attached to the Statement of Claim.
[2] Mr. Flom sent invoices to Mr. Lourakis monthly using the same style and type of format for each invoice, from January, 2009 to June, 2009. These invoices were based on a rate of $200 per hour. CI alleges that the parties entered into a New Agreement (“the New Agreement”) in late January or February, 2009 which provided that Mr. Flom’s compensation would be based on a flat monthly rate replacing the hourly rate set out in the Agreement.
[3] Mr. Lourakis does not dispute that the work was done by Mr. Flom, but disputes the amount claimed for the Services as it is based on an hourly rate, instead of the flat rate allegedly agreed to in the New Agreement. In the alternative, he submits that if the Court does not find that the New Agreement between the parties had been reached, certain defences to CI’s liability pursuant to the Agreement are applicable as a complete defence to AF’s claim.
[4] The issues are as follows:
Did the parties replace the Agreement with the New Agreement? If so, what were the terms of that agreement?
If the Agreement is still operative, do the alternate defences raised by CI absolve it of any further liability to AF?
Is CI liable for the fees claimed by AF?