COURT FILE NO.: 866/08
Guelph
DATE: 20120103
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
URBACON BUILDING GROUPS CORP.
Marco Drudi for the Plaintiff
Plaintiff
- and -
THE CORPORATION OF THE CITY OF GUELPH
Derek A. Schmuck and Brian J. Decaire for the Defendant
Maria Ruberto for the Lien Claimants (Carriage Counsel)
Defendant
Robert J. Kennaley for Lien Claimant Swan & Associates Inc.
DECISION
D.L. CORBETT J.
[1] Swan & Associates Inc., a subcontractor, moves for a declaration that its claim for lien was timely, and for partial summary judgment. Guelph, the owner, opposes on the basis that the Swan lien was registered out of time. Urbacon, the contractor, consents to Swan’s motion. The other subcontractor lien claimants consent or do not oppose Swan’s motion.
[2] This case has a history.[^1]
[3] In my decision of September 1, 2010, I addressed the background of this case and general principles on motions for summary judgment of this nature:[^2]
[4] On July 19, 2010, the Lien Claimants moved for a rateable distribution from the minimum holdback paid into court. This motion culminated a lengthy process of case supervision and settlement meetings, and “vetting” claims by a Vetting Committee established by the parties.
[5] In this process, Lien Claimants sought partial payments in respect to the uncontested portions of their claims. The Vetting Committee reviewed the claims of the Lien Claimants as to quantum, timeliness and validity of liens. By the return of the motion, all parties consented to
(a) distribution of $1.83 million[^3] to some Lien Claimants;
(b) trial of an issue respecting timeliness of the lien claims of Swan & Associates Inc. and Yorke Hi-Lo Stages and Hoists Inc.;
(c) trial of an issue respecting the validity of claims for lien of 975866 Ontario Limited and Delso Contracting & Enterprises Inc.; and
(d) the issues of timeliness and validity of the lien claims of Tagg[^4] and OTC proceeding by motion for partial summary judgment before me on July 19, 2010.
Leave to Bring the Motion
[6] I agree with Guelph that the technical rules under the Construction Lien Act ought not be relaxed in large complex actions.[^5] But nothing of the sort has been suggested here. These motions may finally resolve issues prior to trial and thus may expedite the trial process. Consent to bring these motions is granted.[^6]
The Issues on this Motion
[7] Both Tagg and OTC were subcontractors of Urbacon and supplied services and materials to the improvement.[^7] The issues on this motion are:
(a) For Tagg, is there a triable issue whether the lien claimant is named properly on the claim for lien?
(b) For OTC, is there a triable issue as to the timeliness of its claim for lien?
(c) If the answer to (a) and/or (b) is yes, should there be a trial of these issues prior to the main trial?
[8] For the reasons that follow, partial summary judgment shall issue for both the Tagg and OTC liens.
General Principles
[9] If there is a triable issue, then partial summary judgment ought not be granted.[^8]
[10] On this motion, the facts are not in dispute.[^9] A “triable” issue is not merely an “arguable” issue, but one that requires a trial for resolution. Here, with no material conflict in the evidence, this court is in as good a position as a trial court to decide these issues.[^10]
[4] The issue on this motion is whether Swan’s lien was preserved within the 45-day period prescribed by the Construction Lien Act. I have reviewed some of the applicable law as follows:[^11]
The cases are replete with examples of concocted attendances at a job site to extend the time for filing a claim for lien.[^12] The court will not permit a claimant to bootstrap its claim by late attendance at a job site after its lien rights have expired.[^13] On the other hand, where there is no certificate or declaration of substantial completion of the contract or the subcontract (as is the case here), a subcontractor lien claimant is entitled to register a claim for lien within forty-five days from “the date on which the [claimant] last supplies services or materials to the improvement”.[^14] I do not agree that “unlike a contractor, a subcontractor cannot take a hiatus or holiday from work”.[^15] Rather, the question is whether there is continued supply of services and materials under the contract, or whether a subsequent attendance is a sham or “bootstrapping” attendance to revive expired lien rights. The cases are fact-specific, and a sweeping conclusion that non-attendance at a construction site for 45 days will terminate lien rights is not correct.[^16] Rather, I agree with Di Tomaso J. when he observes:
Sometimes a fine distinction must be made between services and materials supplied in order to complete a contract and the same services and materials supplied merely for the purposes of extending the time for filing a lien which otherwise would have expired. This distinction is a question of fact in every case and often a difficult one to make.[^17]
[5] The issue on this motion also concerns the nature of the work done by Swan within the 45-day period prior to registration of its claim for lien. Guelph takes the position that any work that was done by Swan during this period was rectification of deficiencies rather than performance of contract work. “It is trite law that the 45 day lien period does not extend if the work that is done is to repair deficiencies.”[^18] However, “trite” as this proposition is, it can be difficult to apply. As Master Sandler noted in a leading case in this area:
I note that the phrase “repair defects” and “remedy defects” and “remedy deficiencies” and “correct a known defect” are phrases that could cover many different factual situations, from uncompleted work (i.e. work that is not capable of being completed by factors beyond the lien claimant’s control such as site unavailability, or hold-ups by other sub-trades, or the like), to incomplete work, to originally defective work, to subsequently discovered defects… much care must be taken in using these expressions, and in determining, exactly, the nature of the “later work” sought to be relied upon by a lien claimant to extend the time for registration. Much will turn on the facts of each case.”[^19]
[6] The parties exchanged materials and conducted cross-examinations on this motion. In addition, the moving party had its witnesses available for oral cross-examination before the court, if the court considered that it needed to hear the evidence in-person.
[7] On reading the materials, I concluded that the matter could be decided on the written record, and that nothing would be added by observing the demeanour of the witnesses in the witness box.
[8] The parties are required to “put their best foot forward” and “lead trumps” on a motion for summary judgment. Swan put before me the evidence of witnesses with personal knowledge of the issues in question. Guelph did not: Guelph relied upon the documentary record, its cross-examinations of Swan’s witnesses, and evidence given on examinations for discovery.
[9] I am satisfied that I have the full factual record on the issue of the timeliness of Swan’s lien. Guelph’s concerns, arising from documentary evidence, are answered by Swan. There are no inconsistencies in the evidence. Guelph challenges the credibility of Swan’s evidence, but does not go so far as to suggest fraud or deceit. And when Swan’s evidence is placed in context, it makes sense.
[10] I conclude that Swan has proven, on a balance of probabilities, that its date of last supply was September 19, 2008, and thus that its claim for lien was registered in time. There being no conflict in the evidence, there is no need to hear the evidence orally.
[11] After this motion was argued, the Court of Appeal released its decision respecting the recent amendments to the Rules regarding summary judgment.[^20] I did not find it necessary to hear submissions from the parties about the effect of this decision: since there is no conflict in the evidence, no purpose would be served by having the evidence orally.
Structure of this Decision
[12] There are two substantive issues on this motion: (a) when was Swan last on the Guelph job site? and (b) was Swan doing contract work or rectifying deficiencies when it was last at the job site?
[13] There are also several technical issues:
(1) should the motion be dismissed because of outstanding undertakings and objections?
(2) should the motion be dismissed or adjourned on the basis that Swan’s lien may not be claimed in the right name?
(3) is a copy of a timesheet produced by Swan admissible in evidence?
(4) is evidence provided by a law clerk in Guelph’s solicitors’ office proper?
(5) May Guelph file a fresh affidavit after the completion of cross-examinations?
[14] I start with the technical issues because issues 3, 4 and 5 bear on the factual record available for the substantive issues.
Preliminary Issue 1 – Outstanding Undertakings
[15] The motion for summary judgment was scheduled as part of the case supervision process. The parties established a Vetting Committee to evaluate subcontractor claims. Guelph was a member of the Vetting Committee. The Committee’s task was to try to agree on the validity, timeliness and quantum of each subcontractor’s lien claim. Where agreement could not be reached, the Committee’s goal was to identify the area(s) in dispute. The only “area in dispute” respecting the Swan claim for lien was agreed to be the timeliness of Swan’s lien, as stated in paragraph 5(b) of my decision of September 1, 2010.
[16] The evidence on the issue of the timeliness of the Swan lien is discrete. There is no need to await the (likely) protracted trial between Urbacon and Guelph to decide it. Swan proceeded on the basis of a motion for summary judgment, with the alternative of conducting a trial of the issue if I determined that I needed to hear oral testimony. The goal was to have all the evidence before the court so that a decision could be made on whether the lien was timely.
[17] Swan will have little or no role to play in these proceedings once the issue of the timeliness of its lien is decided. If it loses, it will have its contract claim with Urbacon. If it wins, it will receive judgment on its lien claim against Urbacon. It will receive partial judgment against Guelph for Swan’s portion of the uncontested holdback funds. Like all the other subcontractor lien claimants, it will have to await the conclusion of the trial between Urbacon and Guelph before it knows the extent of its further recourse against the holdback funds. Swan’s role in the trial will likely be limited to representation by Carriage Counsel. In practical terms, Swan will be “out” of the main dispute, and for the balance of the proceedings will likely hold a “watching brief” with the other subcontractor lien claimants.
[18] On this motion, Swan placed all of its evidence before the court in the form of affidavits from the individuals with personal knowledge. Guelph cross-examined these witnesses out of court. There were no outstanding undertakings or objections from those cross-examinations.
[19] A party who is “in default” under the Rules may not bring motions. Failure to answer undertakings and refusals to answer proper discovery questions, are examples of being “in default”.
[20] Swan was examined for discovery prior to the motion for summary judgment. Guelph says that by the return date of the motion for summary judgment, Swan still had outstanding undertakings. Swan had objected to some questions asked of it during the discoveries.
[21] Guelph raises the issue of undertakings and objections as a basis for opposing Swan’s motion.
[22] Guelph could not point to any outstanding disclosure issues that related to the timeliness of Swan’s lien.
[23] Deadlines for answers to undertakings have been addressed at case supervision meetings, generally on the basis of consent deadlines. Guelph did not raise this as a threshold issue for the motion for summary judgment during the case supervision process.
[24] Guelph is right that a party “in default” may be precluded from bringing a motion. However, there is discretion in the court. An incomplete examination, including outstanding undertakings and refusals, is not, by itself, a “genuine issue for trial”.[^21] In this case, Swan has not “failed” to answer its undertakings in any event. It has provided its answers. It objects to providing further information, on the basis of the scope for relevance in the examinations of subcontractors established by this court during the case supervision and management process. Guelph and Swan are entitled to disagree about the proper scope of the examinations, and Guelph may persuade the court that the scope ought to be expanded to permit it to examine fully on areas, not strictly relevant to the subcontractor claims, that are relevant to the dispute between Guelph and Urbacon. But none of that bears on the timeliness of the Swan lien.
[25] Adjourning the motion for a motion on the undertakings would have put the parties to expense and delayed a decision on the merits concerning the timeliness of Swan’s lien. Nothing would have been gained by doing that.
[26] I decline to dismiss or adjourn Swan’s motion because it may have unfulfilled undertakings or objections. In so ruling, however, I do not relieve Swan from answering questions it has undertaken to answer, nor do I preclude Guelph from pursuing objections made by Swan.
Preliminary Issue 2 – Wrong Name on the Lien
[27] Swan, like many construction companies in Ontario, has one company for union contracts, and another for non-union contracts. The alleged name confusion is between these two entities.
[28] This issue was raised for the first time during oral argument. It is not pleaded. It was not raised as an issue before the Vetting Committee. It appeared to occur to Guelph’s counsel for the first time as he was making submissions.
[29] Mis-naming a lien claimant can be a serious issue: in a previous decision in this case I addressed just such an issue.[^22]
[30] This case has been going on for roughly three years. It is simply not acceptable for counsel to posit a new theory for the defence, without any notice, during argument on a judgment motion. To be sure, if new information comes to light, a party may change its position. But new information means disclosure of new evidence, not a fresh idea in counsel’s mind.
[31] Of course, since the issue had not been raised by Guelph prior to argument of the motion, evidence on the motion was not directed towards this point. Any confusion between the two companies was a matter of conjecture, one that could well have merited inquiry during the process of the Vetting Committee, and during the exchange of materials and cross-examinations on the motion. None of this was done, and instead counsel dropped this bomb-shell in mid-flight, as it were.
[32] This will not do. The parties are expected to have identified and pursued the issues they wish to pursue before they enter the courtroom. Indeed, they did so in July 2010, when the sole issue for this motion was identified as the timeliness of Swan’s lien. Swan has given evidence that it held the concrete subcontract from Urbacon. This was not challenged in Guelph’s materials or during the cross-examination. Counsel’s surmise that, perhaps, this could have been challenged, does not open up the issue at such a late stage.
Preliminary Issue 3 – Admissibility of the Timesheet
[33] Guelph objects to admissibility of a key piece of evidence adduced by Swan, a photocopy of a timesheet allegedly recording hours for one of Swan’s employees, on the Guelph job site, on September 19, 2008. Guelph objects to this document on the basis that it is double-hearsay.
[34] This objection prompted an exchange between counsel and the court which, I confess, was marked by some asperity on the part of the court. This led counsel, looking a bit forlorn, to ask politely how he might best advance such an argument, since he felt he needed to do so to advance his client’s interests. The response: the argument is silly, a waste of time, and should not have been made.
[35] Collegiality in the courtroom is a two-way street. The court often regrets harsh words. But here I must stick to them to reinforce the point.
[36] The photocopy of the timesheet has many problems associated with it. Admissibility is not one of them. It is admissible in three ways, and obviously so. The real issue is what weight, if any, ought to be given to this document.
[37] Swan has produced Mr. DiBenedetto, the employee whose time is recorded on the timesheet. He described the work he was doing on the Guelph project during September 2008, and his recollections (a) about the last day he worked on the Guelph site; and (b) the way in which he reported his hours worked on the Guelph site. Swan has produced its manager for the work done on the Guelph project, who explained what work was being done in the period August to September 2008. And Swan has produced its office manager, Ms. Swan, who explained Swan’s record-keeping practices and attested to the timesheet herself. The critical entry of Mr. DiBenedetto’s time on September 19, 2008 on the Guelph job site was made in handwriting by Ms. Swan. She identified her handwriting and gave evidence as to its meaning.
[38] The bulk of the timesheet relates to time worked by Mr. DiBenedetto on another site, Glendale. The records of Mr. DiBenedetto’s time worked on that site were made by Al Swan at the Glendale project. Swan did not produce Al Swan on this motion because, sadly, he is dead. Mr. Swan was, however, examined as Swan’s representative at discovery.
[39] There is a rich record of evidence respecting this timesheet. Of course it is admissible.
[40] First, the document is a copy of a business record. It was in the course of Swan’s business to keep the record, and it was made in the ordinary course of Swan’s business. The frailties in Swan’s record-keeping may lead a court to doubt the contents of this particular record, but that is not a matter of admissibility.
[41] Second, the document was used to refresh the memory of witnesses produced by Swan. This does not lead to the document being admitted for the truth of its contents: it is the witnesses’ refreshed recollection that is admitted, and not the document through which the recollection has been refreshed. However, the recollection of Ms. Swan, once refreshed, also renders the document “past recollection recorded”. And that is a basis on which the document may be admitted for the truth of its contents.
[42] Third, the document was proved by one of its makers. The person who made the key notation on the document gave evidence: Ms. Swan, identified her handwriting, and testified about what happened.
[43] The document produced was a photocopy of the original. The failure to produce the original goes to whether the court is prepared to accept that the copy is, in fact, a genuine copy of the original, and may affect the weight given to the document. The original of the document was, apparently, in Mr. Swan’s possession. The original was not located in the aftermath of his death. In the circumstances, I am satisfied that the photocopy is the best evidence that remains of the original document. Thus the photocopy is admissible as evidence of the original.
[44] Admitting the timesheet into evidence for the truth of its contents does not mean, of course, that the court will necessarily accept the contents as true. The timesheet becomes one piece of evidence, to be weighed along with the rest of the evidence.
[45] I review the contents of the timesheet below, when I deal with the substance of the motion.
Preliminary Issue 4 – The Law Clerk’s Affidavit
[46] I see nothing wrong with an affidavit from a law clerk or junior lawyer attaching evidence that has been obtained through discovery and production of documents. Guelph provided such an affidavit from a law clerk who works for Guelph’s solicitors.
[47] Where this is done, however, care must be taken not to place the law clerk in the position of being a “fact witness’ for facts she does not know herself. Nor should the law clerk engage in argument. Nor should she be offered as a witness to shield those with personal knowledge from cross-examination. Nor should she weigh evidence and offer her view as to its truth.
[48] The line between analysis of evidence (which can be helpful), and argument (which is not) can be difficult to draw. Here, most of the evidence of the law clerk selected and attached relevant portions of the evidence from documents and discovery transcripts. The conclusion of the affidavit, however goes beyond what is permissible: the law clerk swore: “[h]aving reviewed the filings, correspondence, and productions exchanged between the parties I verily believe that Mr. DiBenedetto was not at the Premises on September 19, 2008”. The law clerk’s belief is the conclusion she would draw from reviewing all of the evidence. This is, at most, argument, and in respect to one of the ultimate issues before the court. It is not proper. It is not admissible in evidence.
Preliminary Issue 5 – Evidence Tendered After Cross-Examinations
[49] I refused to permit Guelph to place in evidence an affidavit from Mr. Pavisevic that was produced after cross-examinations. My reasons were as follows:
The affidavit of Mr. Pavicevic is not admissible in its current form in any event, as a naked expression of expert opinion, without analysis or explanation, and without meeting the requirements of Mohan. Further, the substance of the opinion concerns a central issue on this motion and should have been in Guelph’s responding materials. Adducing it now would unduly delay this matter, requiring cross-examinations and sur-reply expert evidence.
[50] I indicated that I would provide further reasons on this point in due course. On reflection, I am satisfied my brief endorsement covers the various reasons for not permitting Guelph the “exceptional relief” of introducing fresh evidence after cross-examinations.[^23] Guelph argued that it tendered the evidence in response to information gleaned on cross-examinations. That is nonsense; the issue of whether the work was “deficiency work” or “contract work” was clearly in play from the outset.
Substantive Issues
[51] There are two issues concerning the timeliness of Swan’s lien: (a) was the work done by Swan in September 2008 “contract work” or was it “correcting deficiencies”? and (b) what was Swan’s last day supplying services or materials to the project?
(a) Contract Work or Deficiency Work?
Swan’s Evidence
[52] Swan was a concrete subcontractor of Urbacon’s.
[53] The bulk of Swan’s work was performed more than six months before Urbacon left the job site. This work involved pouring concrete into plywood forms. Once the concrete had set, the forms were removed. Swan was responsible for completing this work with a finish to the concrete that met the specifications for the project.
[54] This work includes patching holes, removing creases and spurs, some sanding, and hand-rubbing or polishing the concrete to a smooth, uniform finish. Some concrete surfaces remained exposed, and these were to be brought up to the standard stipulated by the architects.
[55] Guelph takes the position that finishing work on the concrete is in the category of “deficiencies” rather than “contract work”. Swan takes the obverse position. Urbacon, Swan’s head contractor, agrees with Swan.
[56] This is a fact-driven inquiry.
[57] Swan’s evidence is that finishing the concrete is a normal part of its contract. Forms for the concrete are made out of finished plywood. Invariably there are imperfections in the surface, and these need to be finished. While it would be a “deficiency” to leave these imperfections unfinished, it is not a “deficiency” that they happen in the first place”: they are a normal and expected part of the work.
[58] Here, where concrete surfaces are designed to be exposed, the surfaces required a high quality finish. Swan provided three “work-ups” of finished surfaces for the architect’s review and obtained the architect’s approval before doing the surface finishing work.
[59] Swan’s evidence is that its usual practice, on a large project such as this one, (a) to delay finishing work as long as possible, to avoid having to re-do the work because of damage caused by other trades; and (b) where possible, to schedule its finishing work at times (including evenings and weekends) when other trades are not working in the vicinity, because the dust from sanding concrete can interfere with the ability of other trades to do their own work.
[60] Swan agrees that it finished pouring its concrete and removing its formwork many months prior to the termination of the Urbacon subcontract. At this point the only work that remained for it was to finish the concrete in accordance with the architectural specifications. Swan’s evidence is that it assigned one skilled worker, Joe DiBenedetto, to attend the site intermittently to perform the architectural finishing work.
[61] On the basis of Swan’s evidence, I am satisfied that bringing exposed concrete surfaces to the architectural standard was part of the contract work.
Guelph’s Evidence
[62] Guelph relies primarily on documents that list concrete finishing tasks as “deficiencies”. With respect, this does not advance Guelph’s argument very far. A list of “deficiencies” can include incomplete contract work, as noted by Master Sandler in Canadian Rogers Eastern, quoted above.
[63] Swan has described the process for applying architectural finishes. It has explained why this is done as late as possible, so that completed surfaces do not have to be refinished because of damage caused by other trades. None of this evidence is rebutted by Guelph’s evidence of “deficiency lists”.
Conclusion
[64] Swan’s main work crew was off the site in February 2008. However, its work was not done. Architectural finishes were required for exposed concrete. Mr. DiBenedetto attended the site regularly, on an intermittent basis. This intermittent work was “contract work” and not “deficiency work”.
(b) Timeliness of the Lien
[65] Swan’s claim for lien was registered on October 31, 2008. Thus for its lien to be timely, its last date of supply must have been no earlier than September 16, 2008.
[66] Swan claims that it had Mr. DiBenedetto on-site on September 19, 2008, doing the architectural finishing work. Guelph takes the position that Swan was not on-site on September 19th, and that it was not on-site later than September 13, 2008.
[67] I am satisfied from Swan’s evidence that it is more probable than not that Swan was on-site on September 19th. Guelph’s evidence raises questions about this finding, but is not sufficient to tip the balance: despite some evidence to the contrary, on balance it is still more likely than not that Swan was on-site on September 19th.
Swan’s Evidence
[68] It is clear that Mr. DiBenedetto attended the site several times in the weeks prior to termination of the Urbacon contract. It is also clear that he was doing architectural finishing work on the poured concrete on these visits, including August 15, August 23, August 28 and September 12, 2008. The issue is whether Mr. DiBenedetto was also on-site on September 19th in particular, or generally whether he was on-site working on September 17, 18 or 19, 2008.
[69] Swan’s “best” evidence is a timesheet that, it says, establishes that Mr. DiBenedetto was on-site on September 19th. Guelph says that the timesheet should be given no weight.
[70] Swan’s evidence respecting the timesheet is as follows:
(a) Workers were assigned to a primary job site for any particular week;
(b) Sometimes workers would be sent from their primary job site to work on another site;
(c) When a worker was sent from his primary job site to another site, hours worked on the other project could be recorded as follows:
a. A notation might be made on the timesheet of the project from which the worker had been sent;
b. A separate timesheet might be prepared for the “other” project; or
c. The worker’s hours might be “phoned in” to the office.
(d) Where a worker spent a portion of his day away from his primary job site, but returned to the primary job site before the day was over, his time at the other site would be recorded at the primary site, with a notation showing the time spent at the other site. When the worker did not return to the primary job site on the day he worked at another site, generally his hours would be “phoned in” to the office.[^24]
(e) When hours were “phoned in to the office”, often they were recorded on the timesheet maintained for the primary job site, rather than creating a new timesheet for the “other” job. This practice was followed, apparently, to avoid the risk that the second timesheet would be misplaced.
(f) Mr. DiBenedetto’s timesheets for August and September 2008 show that he was assigned to the “Glendale” project.
(g) These timesheets also show that Mr. DiBenedetto was sent from Glendale to Guelph on August 15, August 23, August 28, September 12, and September 19, 2008.
(h) The notation respecting September 19th was made by Cheryl Swan, Swan’s office manager.
Thus the timesheet in question pertains primarily to the Glendale project. It shows a handwritten notation, made by Ms. Swan, showing Mr. DiBenedetto on the Guelph site on September 19, 2008. This was a record made in the ordinary course of Swan’s business. And it was in the ordinary course of Swan’s business to make this record.
[71] Mr. DiBenedetto gave evidence as follows:
(a) He “worked on the Guelph… job doing architectural finishing work right up until the end when [he] was told Urbacon had been terminated from the job”
(b) He recalled being told on a Monday morning that Urbacon had been terminated;
(c) He recalled that he had “worked at Guelph… in the previous week [from the Monday he had been told of Urbacon’s termination], a day or two before the termination”;
[72] Mike Beharry, Swan’s site superintendent for the Guelph job, recalled that Mr. DiBenedetto was sent to Guelph to perform architectural finishing work intermittently, as required, right up to the date Urbacon was terminated.
Urbacon’s Evidence
[73] Urbacon cannot say whether Mr. DiBenedetto was on-site on September 19th. What it can say is this:
(a) Swan’s work was not complete when it poured the concrete and subsequently removed its formwork. Swan was still responsible for “the completion of rubbing and grinding finish concrete throughout”;
(b) This unfinished work was required “to bring the concrete… to match the sample provided”;
(c) Swan “had a guy on the site from the [time] the concrete was poured right up until very close to the end of the project where he was still finishing and touching up concrete”;
(d) Urbacon did not think Swan was finished its work when the contract was terminated;
(e) It would not surprise Urbacon if Swan was working on rubbing concrete and sanding concrete, to bring the walls up to the require architectural finish, right up to and including Urbacon’s last day on site.
[74] Taking all of this together, I draw the following conclusions:
(1) Swan was continuing with its work finishing its poured concrete.
(2) This work was done intermittently.
(3) Mr. DiBenedetto did this work for Swan.
(4) Mr. DiBenedetto recalls being present on-site shortly before the Urbacon contract was terminated.
(5) The Urbacon contract was terminated on Friday September 19, 2008, at about 3:50 p.m.
(6) Mr. DiBenedetto was not on-site at the time the Urbacon contract was terminated.
(7) Mr. DiBenedetto was told on Monday September 22, 2008 that Urbacon’s contract had been terminated;
(8) Mr. DiBenedetto recalls being on-site “a day or two before” Urbacon was terminated. This would place him on-site on Wednesday September 17 or Thursday September 18, 2008.
(9) After so much time has passed, it is not likely that Mr. DiBenedetto would be able to recall precisely which day he was last on-site. It is more likely that he would recall, in general terms, the proximity in time between when he was last on-site and when the Urbacon contract was terminated.
(10) It is possible that, in reconstructing when he was last on-site, Mr. DiBenedetto exchanged in his mind “the date Urbacon was terminated” and the date he was told Urbacon had been terminated. Thus his last day on the job could have been a day or two before he was told.
(11) The timesheet is the only document showing Mr. DiBenedetto being on-site in the week ending September 19, 2008. It places Mr. DiBenedetto on-site on September 19th.
(12) It was in the ordinary course of Swan’s business to record Mr. DiBenedetto’s occasional hours at Guelph on his regular timesheets for Glendale. These records were made at or shortly after the events in issue. It is possible that Mr. DiBenedetto’s hours were attributed to the Guelph project on the timesheet on September 19th. It is also possible that this was recorded on the following Monday, September 22nd.
(13) There was no motive for Swan to mis-record Mr. DiBenedetto’s hours as of the time the record was made: it would not have mattered to Swan, on September 22nd, whether Mr. DiBenedetto’s last day on the job was any particular day during the week ending September 19th.
(14) It is most likely that Mr. DiBenedetto was on-site during the week ending September 19th, and that being the case, it is most likely that the timesheet accurately records his precise hours for the week as being on September 19th.
Guelph’s Evidence
[75] Guelph raises several points that it says should lead this court to conclude that Mr. DiBenedetto was not on-site on September 19th:
(1) the timesheet showing Mr. DiBenedetto’s hours pertains to a different job site (Glendale);
(2) the timesheet document is for ‘Lagco Forming” rather than “Swan & Associates”
(3) eight hours are recorded for Mr. DiBenedetto for September 19th, and Mr. DiBenedetto cannot have worked eight hours at the Guelph site on that date, given the time at which the Urbacon contract was terminated and workers forced to leave the site;
(4) the notation on the timesheet for the work attributed to the Guelph project is in a different handwriting than the rest of the entries on the card;
(5) Swan was not recorded by Urbacon as present at the job site on September 19, 2008, and there should have been a record of everyone present on-site each day;
(6) Urbacon confirmed on September 18, 2008 that Swan would “next” be on-site on September 23 or 24, 2008, implying that Swan was not expected on September 19th;
(7) minutes of site meetings for September 2008 do not record Swan as being present that month;
(8) the notation on the timesheet for the hours worked by Mr. DiBenedetto, and the project on which he was working, are in different handwriting;
(9) there are unexplained markings on the timesheet that suggest it has been altered or “corrected”, and no legitimate explanation has been given for this problem. Given the unavailability of the original records, this casts the truth of the contents of the timesheet into serious doubt.
[76] Point One: is explained by Swan as a consequence of its record-keeping. Mr. DiBenedetto was primarily working on the Glendale job, so his hours were recorded on timesheets for that job. His time away from that job, working on the Guelph project, is memorialized on the Glendale timesheet. The issue, of course, is not whether Swan has an optimal record-keeping system, but whether Mr. DiBenedetto was on-site at the Guelph project on September 19, 2008. This concern is answered in Swan’s evidence.
[77] Point Two: is more a rhetorical flourish than an argument. “Lagco Forming” and “Swan & Associates” are affiliates. One performs union jobs and the other performs non-union jobs. As Guelph’s counsel candidly conceded during argument, this is common in the construction industry in Ontario. Mr. DiBenedetto worked under the “Lagco” banner at Glendale.
[78] Point Three: is based on the timing of Guelph’s termination of the Urbacon contract. The decision was announced on September 19th, and at 3:50 p.m. Urbacon’s personnel, including those of its subcontractors, were excluded from the site. If Mr. DiBenedetto had been on-site at 3:50 p.m., he would have been removed from the site. Swan responds that Mr. DiBenedetto’s usual work hours were 7:00 a.m. to 3:30 p.m., so he worked his usual eight hour shift and was off the site by the time Guelph started removing people. It is also possible, of course, that Mr. DiBenedetto left somewhat before putting in a full eight hours (it being a Friday, and Mr. DiBenedetto being, effectively, unsupervised on the site).
[79] Point Four: is answered by Swan’s account of its record-keeping practices. The on-site times at Glendale were recorded by the site supervisor there. The reference to the Guelph site on September 19th was recorded later, in Swan’s offices, by Ms. Swan. That is why the handwriting is different for the two time entries.
[80] Point Five: is answered by the Urbacon evidence – and the lack of evidence. One might suppose that a job site of this magnitude could have strict site-access conditions, requiring that anyone present sign-in with the site office. However, supposition is not evidence. Urbacon, itself, provides evidence that it was possible that Swan was on-site “right up to the last day”. If Guelph thought this evidence was inconsistent with site attendance records kept by Urbacon, that could have been put to Urbacon. Swan’s evidence was that it was not necessary for its occasional worker to sign-in at the site office on the days he was there: the site was run less formally than this. Supposition about general practices does not weaken Swan’s direct evidence on this point.
[81] Point Six: is most unfortunate, and an example of the care that must be taken when a legal professional provides an affidavit rather than the client or some other witness with personal knowledge. In the affidavit, it is said that Urbacon advised on September 18th that Swan would “next” be on-site on September 23 or 24. In fact, this evidence is mis-stated and taken out of context. It is mis-stated in that the word “next” was not used by Urbacon. It is taken out of context because it referred to a particular piece of work that Swan was going to attend to do, rather than the general finishing work being done by Mr. DiBenedetto. Thus, Urbacon was asked by Guelph’s agents when a particular piece of work was to be done, and Urbacon advised that Swan would be on-site to do it on September 23 or 24. In this context, Urbacon’s statement does not preclude Swan having someone on-site at other times, doing other work.
[82] Point Seven: is not supported by a factual basis that gives it any force. Guelph has not provided any evidence about the practices respecting attendance at site meetings. In this, the point is comparable to point 5. It might be supposed that all active trades would be required to attend site meetings, so that all involved would be up-to-date about the project. But supposition, again, cannot replace evidence. Here, given the context, one can suppose explanations for Swan not attending site meetings when its work was restricted to occasional attendances to do finishing work. It could be supposed that Swan’s presence on the site – one man, perhaps once every week or so – would not justify the expense of having someone attend the site meetings. Whatever direction one’s suppositions might run, however, they are no replacement for evidence. Swan’s evidence is that it was not required at and did not attend site meetings during August and September 2008..
[83] Point Eight: is a significant problem for Swan. The hours recorded for Mr. DiBenedetto for September 19th are in the deceased Mr. Swan’s handwriting. The notation for the Guelph project is in Ms. Swan’s handwriting. If Mr. DiBenedetto had reported his hours to Mr. Swan, then we would expect both notations to be in Mr. Swan’s handwriting. If Mr. DiBenedetto had “phoned in” his hours to the office, we would expect both notations to be in Ms. Swan’s handwriting.
[84] Point Nine: raises further questions about the authenticity of the timesheet notation for September 19th. It appears, from the photocopy that is in evidence, that a note on the timesheet has been altered, perhaps by “whiteout”, and that Ms. Swan’s notation respecting the Guelph project has been added after an underlying notation that has been obliterated. This difficulty is compounded by the unavailability of the original document, which might assist in dispelling the appearance of impropriety.
[85] It is unfortunate that Mr. Al Swan cannot assist in clearing up the mysteries surrounding points eight and nine. But he is not alive, and cannot assist. The court must decide based on the information that is available. Only two scenarios recommend themselves. The first is that Mr. DiBenedetto worked eight hours on September 19, 2008, but at Glendale, not at Guelph. Later, realizing that Swan’s lien may be out of time, Ms. Swan altered the timesheet by attributing the September 19th time to Guelph. The second is that the timesheet was filled in by Al Swan, recording Mr. DiBenedetto’s time and noting his work location, but that there was some sort of error in Mr. Swan’s note that was subsequently corrected by Ms. Swan.
[86] The originals of the relevant documents were provided to Al Swan for disclosure to his solicitors and for preparation for his examination for discovery. Those originals cannot now be located, so the photocopy is the best evidence we have.
[87] Guelph does not accuse Ms. Swan of fraud and deceit here. It argues, instead, that Swan has not been able to prove a last date of supply on a balance of probabilities.
[88] Points eight and nine were not explored with Al Swan when he was examined for discovery.
[89] It is possible, of course, that the timesheet has been concocted for the purpose of this proceeding. But I think that unlikely. First, in general terms, there is no doubt that Swan was on site regularly up to September 2008. There seems no doubt Mr. DiBenedetto was on site on September 13, 2008. So this is not a case where a last date of supply is claimed long after a previous site attendance.
[90] Second, if this was a concoction, one would not expect to see the mysterious marks (point nine). It is far more likely that Ms. Swan made a correction to the timesheet when it came into the office (in which case she would not care if it could be seen that she had done so) than that she deliberately falsified the document, but did so in a sloppy manner.
[91] Third, Mr. DiBenedetto’s evidence largely confirms Swan’s position. Mr. DiBenedetto is a specialized skilled worker. He has no financial interest in the outcome here. While he may be loyal to his employer, he really has no motive to lie. His evidence was not shaken on cross-examination. Accepting it, as I do, this evidence places Mr. DiBenedetto on site on September 17th, 18th or 19th, 2008. The timesheet narrows this down to September 19th.
[92] On balance then, I am satisfied it is more likely than not that Swan was on site on September 19, 2008.
Decision
[93] Swan’s motion is granted.
[94] As noted during oral argument, there is no lien for interest, and thus the order for partial summary judgment shall be restricted to the uncontested principal amount of Swan’s claim for lien.
[95] The parties shall agree upon costs and the form of the order by January 17, 2012, failing which they shall provide me with their written submissions on these issues by January 25, 2012. If any party wishes to vary these deadlines, they shall arrange a brief conference call with me no later than January 14, 2012.
D.L. CORBETT J.
Released: January 3, 2012
COURT FILE NO.: 866/08
Guelph
DATE: 20120103
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
URBACON BUILDINGS GROUP CORP.
Plaintiff
- and –
THE CORP. OF THE CITY OF GUELPH
Defendant
DECISION
D.L. CORBETT J.
Released: January 3, 2012
[^1]: See, in particular, Urbacon v. Guelph (2009), 91 C.L.R. (3d) 145, in which I found Guelph’s minimum holdback obligation is $3,272,714.15, and ordered that amount paid into court; Urbacon v. Guelph (unreported, January 15, 2010) , in which I directed that motions for payment out be scheduled by June 30, 2010; Urbacon v. Guelph (unreported, September 1, 2010), in which I memorialized the parties’ consent that $1.83 million be paid out to various subcontractors of Urbacon, and granted declarations and partial summary judgment for lien claimants Tagg Industries and On-Time Construction. The history of the matter is also reflected in unreported orders on the following dates: December 3, 2008, March 23, 2009, April 22, 2009, September 15, 2009, February 19, 2010, December 13, 2010, March 31, 2011 and June 14, 2011.
[^2]: Urbacon v. Guelph , (unreported, September 1, 2010), paras. 4-10 (references included).
[^3]: This leaves about $1.32 million paid into court.
[^4]: Tagg has two claims for lien. Only the first is at issue on this motion.
[^5]: Neico Canada Inc. v. Cardinal Power of Canada L.P. (1997), 10 C.P.C. (4th) 362 (Gen. Div.), per Saunders J., at para. 7.
[^6]: Construction Lien Act, s.67(2).
[^7]: The quantum of OTC’s claim is agreed at $64,300.43. Tagg claims $344,723.15 in its first claim for lien, of which $295,351.42 is undisputed. This motion does not concern the disputed portion of Tagg’s first claim for lien, or its second claim for lien.
[^8]: See for example 690452 Ontario Ltd. v. Cataract Plaza Ltd. (1989), 36 C.L.R. 231 (Ont. H.C.J.), per Fleury L.J.S.C. at paras. 5-6. In Re Dominion Bridge 1999 CarswellOnt 5067 (Ont. S.C.J., per Ferrier J., in which the court adopted the Rule 20 test for summary judgment in this context. See also Re A.G. Simpson Automotive Inc.(2002), 21 C.L.R. (3d) 50 (Ont. S.C.J.), per C. Campbell J.
[^9]: Guelph’s evidence respecting OTC’s last date of work is double hearsay, at best. OTC has direct evidence that it was on site, met with the project manager, and did the work it describes. Guelph relies upon an affidavit from junior counsel, on information and belief from a Guelph official who was not present at the meeting described by OTC.
[^10]: It is for this reason that cases such as Disal Contracting Ltd. v. Salamon Hondlings Inc. (1997), 35 C.L.R. 200 (Ont. S.C.J.), per MacKenzie J., do not apply. In Disal MacKenzie J. rejected hearsay evidence tendered at trial. Evidence is permitted on information and belief on a motion, and in the absence of any evidence to the contrary, may be accepted by the motions judge. It is no argument against summary judgment that the nature of the evidence that would be required at a trial is different from that required on a motion.
[^11]: Urbacon v. Guelph (September 1, 2010), para. 22.
[^12]: See for example 1442968 Ontario Ltd. v. Houston Engineering and Drafting Inc. (2008), 71 C.L.R. (3d) 165 (Ont. S.C.J.) per Di Tomaso J., at paras. 66-67.
[^13]: See Blockwall Masonry Ltd. v. Arcaio Design (2007), 66 C.L.R. (3d) 155 (Ont. S.C.J.), per Di Tomaso J., affd. 2008 CarswellOnt 1434 (Div. Ct.), Canadian Rogers Eastern Ltd. v. Canadian Glass (1993), 12 C.L.R. (2d) 219 at para. 76 (Ont. Master), per Master Sandler.
[^14]: Construction Lien Act, s.31(3)(a)(ii).
[^15]: Blockwall Masonry Ltd. v. Arcaio Design, supra., at para. 19.
[^16]: See I.B.E.W. Trust Fund, Local 353 v. 779857 Ontario Inc., (2004), 36 C.L.R. (3d) 48 (Ont. Master), where part of the explanation for non-attendance was the Christmas holiday period: subcontractors, too, may take holidays.
[^17]: Blockwall Masonry Ltd. v. Arcaio Design, supra., at para. 24.
[^18]: Nortown Electrical Contractors Associates v. 161975 Ontario Inc., [2010] O.J. No. 2475 (S.C.J.), per P.D. Lauwers J.
[^19]: Canadian Rogers Eastern Ltd. v. Arcaio Design, 2007 CarswellOnt 5451 (Ont.Master), para. 82; affd. 2008 CarswellOnt 1434 (Ont. Div. Ct.). See also Micon Interiors General Contractors Inc. v. D’Abbondanza Enterprises inc., [2008] O.J. No. 4132 at para. 49 (S.C.J.); Arcon Group Inc. v. Jelco Construction Ltd., [2001] O.J. No. 4661, para. 119 (Ont. Master), per Master Sandler; Applewood Glass and Mirror Inc. v. Baun Construction Inc., [2009] O.J. No. 4845 at para. 11 (Ont. Master), per Master Polika; Vaughan-Scape Landscaping Contractors Inc. v. Watermark Developments Ltd., [2010] O.J. No. 853, paras. 3 and 11 (Ont. Master), per Master Albert.
[^20]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431
[^21]: 645952 Ontario v. Guardian Insurance Co. of Canada (1989), 1989 CanLII 4225 (ON SC), 69 O.R. (2d) 341 (Gen. Div.); Van Eenooghe v. Ross, [2003] O.J. No. 5193 (Div Ct.).
[^22]: Unreported, September 1, 2010.
[^23]: Uranium Medical Research Centre v. Guzman 2006 CarswellOnt 4459, per Master MacLeod, at para. 8.
[^24]: Cross-examination of Michael Beharry, QQ 112-115, 263. I provide references to the record only where I need to cite evidence not taken directly from an affidavit on this motion or set out in the factums.