SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-413378

DATE: 20130821

RE: HARLOW CONTRACTING INC., Plaintiff

AND:

ONYX CORPORATION, GIOVANNI LIONIELLO, a.k.a. JOHN LIONIELLO, a.k.a. JOHN LIONELLO, and VINCENZO LIONIELO, a.k.a. VINCE LIONIELLO, a.k.a. VINCE LIONELLO, Defendants

COURT FILE NO.: CV-10-407811

RE: S & J GARERI TRUCKING LTD., Plaintiff

AND:

ONYX CORPORATION, Defendant

BEFORE: STEWART J.

COUNSEL:
Ian R. Mang, for the Plaintiff S & J Gareri Trucking Ltd.

Shana Dale, for the Plaintiff Harlow Contracting Inc.

Kyle Armagon, for the Defendants

HEARD: July 30, 2013

ENDORSEMENT

[1] The Plaintiffs in these two actions have brought motions seeking summary judgment against the Defendants in each. The Defendant Onyx Corporation (“Onyx”) is named as defendant in both actions. The individual principals of Onyx are named as defendants in the action brought by Harlow Contracting Inc. (“Harlow”). Although the Notice of Motion delivered by S & J Gareri Trucking Limited (“Gareri”) herein seeks an order that these individuals also be added as party Defendants in the action brought by it, that part of the Gareri motion is not being pursued at this point.

[2] The two actions are the subject of an order that they be tried together or one following the other as they arise out of the same or a similar set of circumstances.

[3] The actions are for damages arising from the cancellation of alleged agreements between the Plaintiffsand the Defendants for the provision of equipment and personnel to be used to discharge Onyx’s obligations under a contract with the City of Mississauga (“the City”) for snow removal.

[4] The Plaintiffs take the position that their arrangements with the Defendants were fixed term contracts for the defined period of 5 years and that they were breached by the Defendants when they were terminated before the 5-year period expired. Harlow also seeks to “pierce the corporate veil” and claims damages for the alleged breach against John and Vince Lionello.

[5] The Defendants have taken the position that their arrangements with the Plaintiffs were not for any specified fixed term and could be terminated at will. They deny all allegations that they are in breach of contract or that the Plaintiffs have suffered any damages as a result.

[6] It is important to note that neither agreement is reduced to writing. The Plaintiffs submit that the existence and full terms of each agreement can be inferred from documents that are available as well as the evidence and conduct of the parties.

[7] Conflicting affidavits have been filed by the parties to address, among other things, how the proposed agreements came into being, their terms, how the services provided thereunder were ultimately discharged, how the termination occurred and why, and what damages properly flow from the termination. They are replete with issues and facts which are the subject of controversy.

[8] It may be the case that the Plaintiffs will have a strong argument on the evidence that they say support their claims. However, I am of the opinion that the Defendants on these motions have raised genuine issues which include the very significant issue of what the terms of this agreement actually were. This issue will have to be assessed upon evidence from the parties, a review of all of the other evidence and documentation and then assessed against the backdrop of Onyx’s contract with the City, which could be terminated without cause and without notice at any time.

[9] In my view, the issues raised in these actions are of such a nature and quality as to amount to genuine ones which cannot be resolved on the paper record before me. They involve serious considerations of credibility surrounding the formation and discharge of what is essentially an oral agreement and fairly complicated issues of damages and mitigation. Whether liability may be imposed on the two principals of Onyx will also have to be determined.

[10] I am therefore of the view that these actions are not amenable to proper adjudication by means of summary judgment. A trial is necessary to afford the trier of fact the opportunity to formulate a full or real appreciation of the facts and issues, an opportunity which is not established by the paper record advanced on these motions (See: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (Ont.C.A.)).

Conclusion

[11] For these reasons, the motions are dismissed.

Costs

[12] If the parties cannot agree on the subject of costs, written submissions may be delivered by the Defendants within 15 days hereof and by the Plaintiffs within 10 days thereafter.

STEWART J.

Date: August 21, 2013