COURT FILE NO.: 05-CV-290951
DATE: January 20, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Schindler Elevator Co. v 1147335 Ont. Inc. cob Weston Property Management
BEFORE: Master C. Albert
COUNSEL: J. Lancaster, for the plaintiff (responding party) tel. 416-865-4479; fax: 416-364-7813
L. Bleta, for the defendant (plaintiff by counterclaim) tel. 416-207-0100; 416-231-1280
HEARD: December 16, 2011
ENDORSEMENT
I. Introduction
- Schindler Elevator Co. (“Schindler”) asks the court to enforce an accepted settlement offer. 1147335 Ont. Inc. (“Weston”) asks the court to exercise its discretion and reject the settlement. The issues are:
a) Did Schindler and Weston reach a settlement agreement? If so, should the court exercise its discretion and order that the settlement not be enforced?
b) If the parties reached a settlement, does the quantum of the settlement offer include costs of the action and unpaid interlocutory costs orders made in favour of Schindler after the offer was served but before it was accepted?
II. Background
Weston owns a high rise apartment building at 1765 Weston Road, Toronto. In December 2004 when all of the elevators in the building failed Weston hired Schindler to effect emergency repairs. Schindler registered a lien for $170,300.68 claiming that Weston failed to pay for materials and services supplied. Weston’s counterclaim was struck[^1].
This litigation has had a lengthy and torturous six and a half year history with many interlocutory motions and appeals. Rule 55 requires a referee to adopt the simplest, least expensive and most expeditious manner of conducting a reference and confers on the referee the jurisdiction to give directions. Despite the court’s efforts to simplify the process this case has been anything but summary in character, largely attributable to Weston’s conduct of the litigation.
Schindler’s deponent, Sheila Collins, has been counsel to Schindler since the first pretrial hearing for directions convened on November 17, 2006. She describes the history of the proceeding, attaching as exhibits many of the court’s orders and endorsements, several of which also describe the history of the case.
The following summarizes the procedural history of the action:
a) On Nov 17, 2006 the court issued directions and required Weston to provide particulars of its two million dollar counterclaim (later reduced to one million dollars) by Dec. 8, 2006. Weston breached the order.
b) On April 12, 2007 the court issued directions that included a “last chance” order for Weston to provide particulars of its counterclaim by June 6, 2007 or risk having its counterclaim struck. Weston breached the order.
c) On June 6, 2007 the court further extended the deadline for Weston to produce particulars of its counterclaim to June 30, 2007. Weston breached the order.
d) On October 3, 2007 the court granted Schindler’s motion to strike Weston’s counterclaim for breach of the court’s orders and fixed party and party costs of $6,688.15 in Schindler’s favour. Weston appealed and Justice Swinton upheld the order to strike by decision released September 26, 2008. She awarded appeal costs to Schindler of $5,500.00.
e) On June 23, 2008 Weston asked the court to schedule a motion to amend its pleading. The motion was scheduled to be heard on August 26, 2008 but Weston attended with a proposed pleading that was inadequate requiring the motion to be adjourned for Weston to redraft the pleading. When the motion proceeded on November 3, 2008 the court allowed it in part, giving detailed directions to Weston to further revise the proposed amended pleading. The court also granted leave to Schindler to conduct additional examinations for discovery “arising from the amended pleadings”. The court fixed costs of the motion at $4,000.00 plus costs thrown away in favour of Schindler. Despite the prohibition against appeals from interlocutory orders in section 71(3) of the Construction Lien Act, Weston appealed the court’s interlocutory pleading amendment order.
f) At this point the Schindler action was stalled awaiting disposition of a motion to strike the defence and counterclaim brought by the plaintiff in the related Thyssenkrupp lien claim action. The Schindler action could not proceed because the Thyssenkrupp and Schindler lien claim actions arise from repairs to the same property and were proceeding together by reason of section 60 of the Construction Lien Act. The Thyssenkrupp motion was ultimately successful, the counterclaim in that action was struck for breach of orders and Thyssenkrupp successfully resisted Weston’s appeal.
g) On July 24, 2009 Schindler served an offer to settle on Weston, offering to accept $75,000.00. The covering letter stated: “I serve upon you our client’s Offer to Settle, pursuant to the Rules of Civil Procedure”. The wording of the offer is unequivocal:
The Defendant, 1147335 Ontario Inc. c.o.b. Weston Property Management, shall pay to the Plaintiff, Schindler Elevator Corporation, the sum of SEVENTY-FIVE THOUSAND ($75,000.00) DOLLARS; and
This Offer is open for acceptance until one minute after commencement of the trial, unless withdrawn in writing prior to that time by the Plaintiff, whichever event shall first occur.
h) On July 22, 2010 the court dismissed Weston’s motion challenging Schindler’s conduct of an examination for discovery and ordered Weston to pay costs of $7,694.14 to Schindler.
i) On August 18, 2010 Weston disclosed its intention to bring a motion that I recuse myself from this reference. Weston attended before Justice Himel in “To Be Spoken To” court, asking her to schedule the recusal motion. She directed counsel to bring the motion before me and endorsed the record that I fix costs of the attendance before her. Weston took no steps to prepare or schedule the recusal motion until much later. Motions scheduled for September 21 and 22, 2010, including several summary judgment motions proposed by Weston, had to be adjourned. The court fixed costs of $2,500.00 in favour of Schindler for the appearance before Justice Himel in “To Be Spoken To” court.
j) On December 22, 2010 the court dismissed Weston’s recusal motion with reasons released on February 11, 2011. By order of August 25, 2011 the court fixed costs of the recusal motion in favour of Schindler at $11,277.40. Weston appealed the disposition of the recusal motion and later abandoned the appeal. Counsel informed me that Weston applied for judicial review of the decision. When asked Mr. Bleta confirmed that the application had not been perfected.
k) On July 28, 2011 the court heard discovery motions. Schindler was largely successful and the court awarded costs in favour of Schindler fixed at $5,500.00, allowing 60 days to pay. Weston has not paid these costs and asserts that they are included in the settlement sum of $75,000.00 offered more than two years earlier.
l) On October 3, 2011, the day before an examination for discovery of Weston scheduled to begin at 10:00 a.m., Weston delivered a fax to Schindler with the text: “I have received instructs sic from my client to inform you that they are accepting your client’s offer to settle dated July 24, 2009.” The acceptance is unconditional and unequivocal.
m) The same day at 5:55 p.m. Weston’s counsel left a voice mail message on Schindler’s counsel’s answering machine transcribed as follows:
"Hi Jon, it's Leroy Bleta. I'm just calling to let you know - I thought I might get you, but I've faxed over - offer to settle has been accepted by my client, your client's offer to settle from July '09. Sorry, I have to run. Thanks. I'll talk to you in the morning, if possible. Thanks."
n) A hearing for directions was scheduled before me for October 17, 2011 to fix a trial date and timetable any remaining litigation steps. After Weston served acceptance of the offer and before the October 17, 2011 hearing for directions Weston tried to withdraw its acceptance, claiming that the parties had not agreed on the issue of costs. On October 17, 2011 the court fixed a date to hear Schindler’s motion to enforce the settlement.
III. Jurisdiction on a reference under the Construction Lien Act
On October 23, 2006 Justice Matlow referred the related construction lien action, Thyssenkrupp Elevator (Canada) Ltd.[^2], to the master pursuant to the Construction Lien Act. Section 60(4) of the Act requires that notice of the reference trial be served on all registered lien claimants. In construction lien litigation all lien claims registered against a property are brought together in one proceeding akin to a class action. The trial judge or reference master decides whether the individual lien claims will proceed together, consecutively or separately.
Pursuant to the judgment of reference the reference master “must determine all questions arising in this action on the reference and all questions arising under the Construction Lien Act”. Whether the parties reached a settlement agreement is a question arising in the action and on the reference and as such it is a question that I am required to decide as the reference master.
IV. Did Schindler and Weston reach an enforceable settlement agreement?
- Schindler has always maintained a claim for the cost of collecting unpaid accounts:
a) The contract executed by the parties on January 5, 2005 provides, in part:
“Late or non-payment will result in assessment of interest charged at a rate of 1 ½% per month or the highest rate available, and any attorneys’ fees, expenses and costs of collection.”
b) Schindler included a claim for costs in its statement of claim issued on June 6, 2005.
Schindler served its offer to settle on Weston on July 24, 2009, offering to settle the claim for $75,000.00. The offer was behind a covering letter that stated: “I serve upon you our client’s Offer to Settle, pursuant to the Rules of Civil Procedure”.
Rule 49.07(5) applies where an offer to settle made pursuant to the rules is silent as to costs:
49.07(5): Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled,…
(b) where the offer was made by the plaintiff, to the plaintiff’s costs assessed to the date that the notice of acceptance was served.
I find that in serving its offer and leaving it open for acceptance until after the trial commenced Schindler intended to have its costs assessed up to the date of acceptance. This is an unequivocal term of the offer to settle, incorporated into the offer by rule 49.07(5).
Rule 47.05 (1) provides that an offer to settle may be accepted by serving an acceptance of offer (Form 49C) on the party who made the offer. Weston, by its counsel, accepted the offer in writing on October 3, 2011.The faxed acceptance tracks the wording of the prescribed form: “The (identify party) accepts your offer to settle dated (date).”
Notwithstanding that the fax did not identify on its face that it was in Form 49C, it contains all of the information required by Form 49C, namely the identity of the party accepting the offer, and the date of the offer that is being accepted. The rule is permissive, not mandatory. I find that the fax sent by Weston’s counsel to Schindler’s counsel on October 3, 2011 meets the requirements of rule 49.07(1) and is a written acceptance of an offer to settle. The acceptance is unqualified and unconditional.
Weston argues (i) that the offer was not a rule 49 offer and (ii) that the settlement sum of $75,000.00 includes costs of the action, including the July 28, 20101 costs award of $5,500.00 in favour of Schindler payable by September 27, 2011.
(i) Is Schindler’s offer a rule 49 offer?
Weston’s position is that Schindler’s offer was not a rule 49 offer because the words “rule 49” are not mentioned in the actual offer. Mr. Bleta argues that the cover letter, stating that the offer is served pursuant to the rules, is not part of the offer to settle and as such it does not “save” the offer as one made pursuant to the rules. On that basis, he contends, rule 49.07(5) does not apply. He further argues that even if the cover letter forms part of the settlement offer, it is ambiguous because it does not identify any particular rule. He asserts that the court cannot read into the cover letter that it is made pursuant to rule 49.
Mr. Bleta suggests that the rule referred to in Schindler’s covering letter is the rule respecting service and not the rule respecting offers to settle. That argument has no merit.
As Justice Brown remarked in Alves v Azevedo & Nelson[^3]:
“I do not think it imposes too high a burden on lawyers to require that if they venture into negotiating settlements on behalf of their clients that they inform themselves of the applicable law before doing so. Counsel are reasonably entitled to assume that the opposing counsel with whom they are negotiating know the law.”
- Weston’s argument that the settlement offer was not made pursuant to the rules is contrary to the evidence. The offer to settle was made clearly and specifically pursuant to the rules of civil procedure. Identifying the exact rule is not necessary. A party is entitled to operate on the basis that counsel for the opposite party knows the rules. Besides, a lawyer unfamiliar with the rules could simply look up “Offers to Settle” in the index of the rules book and find the rule pertaining to settlement offers. I find that Schindler’s offer to settle was a rule 49 offer.
(ii) Does the settlement sum include costs?
Having made an offer to settle pursuant to the rules that was silent as to costs I find that rule 49.07(5) applies and Schindler is entitled to have its costs assessed to October 3, 2011.
The rationale underlying rule 49.07(5) is succinctly explained in Holmsted and Watson[^4]:
“Where the accepted offer is made by the plaintiff and it makes no provision for costs, then the plaintiff is entitled to costs assessed to the date notice of acceptance is served. This provision gives the defendant an incentive to accept promptly and stop the growth of costs.”
- The Ontario Court of Appeal in Rooney v Graham[^5] considered rule 49.07(5)(b) and found that it specifically authorizes the plaintiff to assess costs. The court opined:
“In reality it is a simple recognition that if an offer is accepted it should carry with it party and party costs to that date…”
and explained the purpose of rule 49:
“to encourage parties to make reasonable offers to settle and to facilitate the early settlement of litigation”.
In Rooney v Graham the Court of Appeal acknowledged that the rule recognizes the need for an allowance for ongoing costs. Without it the parties would have less incentive to make reasonable offers because the opposite party could depreciate the real value of an offer. This rationale applies to the present case. The original Schindler claim is for $170,300.68. Schindler offered to accept $75,000.00. If the court accepts Weston’s interpretation that costs are included in the settlement sum the real value of the settlement offer would be significantly diminished.
In the Alves v Azevedo & Nelson case, supra, the lawyer resisting the settlement argued that it had been accepted by mistake. Mr. Bleta makes a similar argument: had he understood that the settlement sum did not include costs his client would not have accepted it. The flaw in his argument is that it is not supported by the evidence.
Weston filed two affidavits: one deposed by Mr. Bleta’s legal assistant Umta Shino, and the other deposed by Enzo Barrasso, president of Weston.
In Ms Shino’s affidavit she deposes on information and belief of Ms Brown about what Ms Brown advised Ms Shino about the thoughts of Ms Brown, Mr. Barrasso and Mr. Bleta. Neither Ms Brown nor Mr Bleta tendered affidavit evidence on the motion, notwithstanding that both were available to do so. The evidence filed states that Ms Brown was “out of the country” the week the affidavit was due. The evidence filed does not explain where Ms Brown was that week or whether she had access to email and fax technology. There is no explanation given as to why Mr. Bleta did not depose an affidavit. There is no evidence to justify hiding behind evidence based on information and belief on such a critical issue when direct evidence was available. I find that Ms Shino’s affidavit evidence on this critical issue is hearsay and of no probative value.
Mr. Barrasso’s affidavit largely mirrors that of Ms Shino. On the issue of the settlement offer and acceptance Mr. Barrasso deposes:
I did not believe that Schindler’s Offer sought costs just as it did not seek interest, and just as it does not expressly or impliedly indicate that it is pursuant to Rule 49 or that it includes any, let alone some unknown costs amount.
The Defendant determined that the Defendant would settle for $75,000.00 all inclusive, on the basis that the costs of the action were getting higher as the matter progressed towards trial and that it was a business decision to settle the action on a without prejudice basis, which is all that could be inferred from the offer.
In the event that an inference is drawn that the costs are not included in Schindler’s Offer, then the Defendant would not and does not accept the Schindler Offer.”
Weston submitted no affidavit evidence that the offer was accepted by mistake. Weston’s closest evidence of mistake, without deposing that the offer was accepted by mistake, is that Mr. Barrasso drew an inference that costs were included in the settlement sum. His only explanation for doing so is that it is based on the absence of any mention of interest in the offer. His explanation is not credible. The rules specify what happens with costs when a settlement offer is silent; the rules do not do so for prejudgment interest.
Mr. Barrasso deposes that Weston decided it would settle for $75,000.00 “all inclusive”, but if that was its intention then it would have served a counter offer for $75,000.00 including all costs. By remaining silent on costs and accepting the offer presented more than two years earlier rule 49.07(5) applies. Weston is deemed to have known the cost consequences of accepting the offer.
Mr. Bleta did not depose an affidavit but rather attempts to have his evidence submitted through second degree hearsay told to Ms Shino by Ms Brown to the effect that Mr. Bleta, did not believe that Schindler’s offer sought costs in addition to the settlement sum of $75,000.00. That evidence is of no probative value. In any event, as counsel, Mr. Bleta is deemed to know the law, including rule 49.07(5).
By accepting the offer when it did Weston successfully avoided attending the continuation of its examination for discovery scheduled for the next morning. I find that Weston knew what it was doing and if Mr. Barrasso did not have actual knowledge of the consequences of accepting the offer he is deemed to have knowledge because his counsel is expected to know the law. Notwithstanding that he deposes that if the offer is not inclusive of costs he would not and does not accept it, I find that it is too late for Weston to take that position. There is no evidence of probative value that Weston’s counsel accepted the offer without instructions or in error. Even if that were the case, Weston’s recourse is against its counsel. However, since Mr Barrasso deposed no evidence to that effect I am satisfied that Weston accepted the offer with actual or deemed knowledge of the consequences of doing so.
(iii) Does the settlement sum include interlocutory costs orders?
Weston argues that the settlement sum of $75,000.00 includes unpaid interlocutory costs orders made against Weston after the date that the offer was served but before it was accepted. I disagree. Interlocutory orders for costs are orders of the court and the party against whom the order is made must comply.
In fact, had Weston complied with the costs orders and paid the ordered costs by the ordered deadline, the payments would have been made before the offer was accepted and this would not be an issue.
The rationale underlying rule 49.07(5), explained earlier in these reasons, apples to the requirement to pay interlocutory costs orders of the court. Were that not the case Weston could dilute the value of the settlement by continuing to disobey costs orders until the value of the settlement sum is reduced to zero. That would be contrary to the purpose and intent of the settlement rule.
However, Schindler is not entitled to include in its claim for assessed costs of the action the costs of any interlocutory motions where the court fixed costs of the interlocutory proceeding.
V. Should the court exercise its discretion and reject the settlement?
In Dick v Marek[^6] Justice Hoy sets out how rule 49.09 is to be applied, relying on the decisions of the Ontario Divisional Court in Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc.[^7] and the decision of the Ontario Court of Appeal in Olivieri v Sherman[^8]. She explained that the first step is to consider whether an agreement to settle was reached, treating the motion like a rule 20 motion for summary judgment[^9]. If so, the next step is to consider whether, on all of the evidence, the agreement should be enforced.
In Dick v. Merrill Lynch Justice Hoy concluded that the parties had not agreed on all essential terms of the settlement and on that basis she dismissed the motion to enforce the settlement.
In that case the parties had participated in a judicial settlement conference. The judge conducting the settlement conference was present during most of the negotiations but was not present when the alleged settlement was finally achieved late in the day. One party’s version of what happened is that given the lateness of the hour court staff required counsel and parties to vacate the court building and they did so without writing up their agreement even though they had reached an agreement in principle. The other party’s position was that while the parties had agreed on many issues there remained several critical issues to resolve before concluding a settlement. Later, when the parties tried to document the settlement, they could not agree on all essential terms. Justice Hoy concluded that a settlement had not been reached.
The case before me is distinguishable because Schindler and Weston had agreed on all of the essential terms of the settlement. Weston’s acceptance of the rule 49 offer incorporated the cost provisions of rule 49.07(5). There is no evidence of mistake and there were no unresolved terms of the settlement.
The only issue left to decide is whether the court should exercise its discretion and refuse to enforce the settlement. Weston argues that the court should do so because it did not intend to accept the offer if the settlement sum does not include costs. The evidence does not support Weston’s position.
Weston argues that the court should decline to enforce the settlement because of the ambiguity in the written terms of the offer. I find that there is no ambiguity. The offer is clear: the settlement sum is $75,000.00 payable by Weston to Schindler. As an offer made pursuant to the rules rule 49.07(5) applies, providing for costs to be assessed.
Weston relies on the decision of Justice Hoy in Dick v Merrill Lynch, supra but that case does not apply. Having found that there was no agreement Justice Hoy did not consider whether to exercise her discretion to refuse to enforce a settlement agreement.
Weston also relies on the decision of the Ontario Court of Appeal in Milios v Zagas[^10] where the court considered an appeal from a judgment issued in accordance with an accepted offer. The Court of Appeal allowed the appeal. In that case there was uncontroverted evidence that one party was mistaken about terms of the settlement.
The Milios v Zagas case is distinguishable because unlike that case where the evidence of mistake was not disputed, Schindler disputes Weston’s implicit suggestion that it was mistaken about the terms of the offer. Despite the opportunity to file evidence of mistake from either or both of Mr. Bleta and Mr. Barrasso, Weston tendered no such evidence. There is no evidence of a mistake in the communications between Weston and its counsel and no evidence from Weston’s counsel that he was mistaken when he communicated acceptance of the offer.
Mr. Barrasso, in his evidence and in particular at paragraphs 30, 31 and 33 of his affidavit, does not go so far as to depose that either he or his counsel made a mistake[^11]. Furthermore, his evidence as to his belief, based on silence as to interest, is not credible because it is not supported by the facts. The offer was clearly made pursuant to the rules, which treat costs and interest differently. In the face of rule 49.07(5) silence in the offer as to interest is not a credible basis to form a belief that Schindler had waived costs. Milios does not apply.
Weston argues that there would be no prejudice to Schindler if the court were to exercise its discretion and reject the settlement, requiring the litigation to continue, because the parties would be back into the same case. I disagree. I find that the following prejudice to Schindler would result if the court were to exercise discretion and set aside the settlement:
a) Schindler has endured this litigation for seven years. Most of that time has been taken up with procedural steps related to Weston’s conduct of the action. On October 3, 2011 it was finally over. Setting aside the settlement would delay disposition of the case. Considering the history of this case it is reasonable to expect that if it is allowed to continue the litigation would revert to a quagmire of interlocutory motions, appeals and other procedural delays before a final disposition is reached. That would be prejudicial to Schindler.
b) The action began as a claim for $170,300.68 with a counterclaim for $1,000.00.00. Weston failed to properly particularize it so it was struck out. Weston’s appeal was dismissed. All of these steps took over three years. As the history of these proceedings illustrates, the litigation has been painstakingly slow, with multiple motions and appeals at every stage. If the court permits the litigation to continue then, based on past conduct of the proceedings, it is reasonable to expect that Weston will find new ways to delay the litigation. If, after trial, Weston is less than fully successful, it is reasonable to expect that Weston would move to oppose confirmation of the reference report. I base this expectation on Weston’s conduct to date, where Weston has appealed or attempted to appeal almost every decision this court has made in this case and has been unsuccessful each time. This would significantly delay disposition of the case causing prejudice to Schindler.
c) When Weston accepted the settlement offer the litigation timetable was ignored and discoveries were cancelled. If examinations are rescheduled Schindler would have to repeat its preparation. While costs thrown away could compensate, the consequential delay and expense would nevertheless be prejudicial to Schindler.
d) Schindler’s key witnesses with material knowledge relevant to the contract and the repairs in late 2004 and early 2005 no longer work for Schindler. In fact, they work for a competitor. They will have to be summonsed for trial and may be unco-operative. This could be prejudicial to Schindler.
e) Memories fade with the passage of time. Seven years have elapsed since the events that give rise to this claim. More delay is prejudicial to Schindler.
f) The legislative framework for a construction lien reference is prescribed by rule 55.01 and section 67 of the Construction Lien Act[^12]. Read together the referee has broad discretion to apply principles of proportionality. It would be prejudicial to Schindler and contrary to rule 55.01 and section 67 of the Act if the court were to exercise its discretion and set aside the settlement if doing so would lead to excessive delay, expense and procedural complexity.
Weston argues that if the court enforces the settlement Weston would be prejudiced because it would be required to pay assessed costs of the litigation. That is not prejudice. It is merely a term of the offer that Weston accepted.
I find Weston’s position that it is prejudiced if it is required to pay costs of the action up to the date it accepted the offer untenable and unreasonable. The main reason that costs escalated is Weston’s conduct of the litigation in the period between Schindler serving the offer and Weston accepting it. This is exactly the injustice that rule 49.07(5) is designed to address. But for that rule a defendant could effectively dilute the value of a settlement offer by running up costs to such an extent as to reduce the value of the settlement sum to zero before accepting the offer. I find that rule 49.07(5) applies in the present case and Schindler is entitled to have its costs of the action assessed up to the date that Weston served acceptance of the offer to settle.
VI. Conclusion
For the reasons given I find that Schindler’s settlement offer was accepted by Weston and the action is settled for $75,000.00 plus costs of the action in favour of Schindler to be assessed by me as reference master. I further find that Weston must pay costs orders made by the court and unpaid failing which these costs orders will be added to the court’s final report and enforced as costs of the lien claim.
At the conclusion of the motion hearing on December 16, 2011 the parties were asked to file costs outlines for the motion. Schindler did so. Weston did not. I will hear their submissions on costs of the motion at the pretrial hearing for directions on January 23, 2012.
The parties must attend the pretrial hearing for directions on January 23, 2012 prepared to review the draft reference report and, if time permits, make submissions on the quantum of costs of the action that the court should assess. If there is insufficient time to hear submissions on costs counsel should attend on January 23, 2012 prepared to fix a date and time for the costs assessment.
Master C. Albert .
DATE: January 20, 2012
COURT FILE NO.: 05-CV-290951
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Schindler Elevator Co. v 1147335 Ont. Inc. cob Weston Property Management
COUNSEL:
J. Lancaster, for plaintiff (responding party)
tel. 416-865-4479; fax: 416-364-7813
L. Bleta, for defendant (plaintiff by counterclaim)
tel. 416-207-0100; 416-231-1280
ENDORSEMENT
Master C. Albert
DATE: January 20, 2012
[^1]: Upheld on appeal [^2]: court file CV-04-280310 [^3]: 2010 ONSC 2853 [^4]: Watson, Gary and Lynne Jeffrey, Ontario Civil Procedure, Volume 4, Carswell at page 49-33 [^5]: 2011 24064 at paragraphs 31, 43, 45 and 46 [^6]: 2009 CarswellOnt 3179; 72 C.P.C. (6th) 374 [^7]: (2007), 2007 39604 (ON SCDC), 87 O.R. (3d) 464 at paras. 8-10 [^8]: 2007 ONCA 491, [2007] O.J. 2598 at para 1 [^9]: Rule 20 was amended after the Dick v Merrill Lynch case was decided. As a result of the amendments the court on such motions can now weigh evidence and make findings of fact and credibility in appropriate circumstances. [^10]: 1998 7119 [^11]: Leave to conduct cross-examinations was not sought and not granted: order of October 17, 2011. [^12]: Rule 55.01(1) provides: “A referee shall, subject to any directions contained in the order directing the reference, devise and adopt the simplest, least expensive and most expeditious manner of conducting the reference and may, (a) give such directions as are necessary; and (b) dispense with any procedure ordinarily taken that the referee considers tio be unnecessary, or adopt a procedure different from that ordinarily taken. Section 67(1) of the Construction Lien Act provides: “The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question.”