NEWMARKET

COURT FILE NO.: CV-12-108418

DATE: 20130906

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vaughan Paving Ltd.

Plaintiff

– and –

Unimac Group Ltd., Trustees of the Mount Albert United Church Congregation of the United Church of Canada, Mount Albert United Church Senior Citizens Foundation, The Congregation of the Mount Albert United Church of Canada, Canada Mortgage and Housing Corporation, and First National Financial GP Corporation

Defendants

Emilio Bisceglia, for the Plaintiff

Justin Baichoo, for the Defendant, Unimac Group Ltd.

HEARD: June 25, 2013

REASONS FOR DECISION

EDWARDS J.:

Overview

[1] The plaintiff seeks an order for summary judgment against the defendant, Unimac Group Ltd. (“Unimac”) in the amount of $132,531.20. The plaintiff’s claim arises out of a purchase order between the plaintiff and Unimac, dated August 12, 2011, pursuant to which the plaintiff was to provide various services in connection with the asphalt paving of a parking lot, which was part of a larger project in connection with the construction of a senior citizens’ residential home (the “retirement home”) owned by the co-defendants, Trustees of the Mount Albert United Church Congregation of the United Church of Canada, Mount Albert United Church Senior Citizens’ Foundation, and the Congregation of the Mount Albert United Church of Canada, all of whom shall be collectively referred to as (the “Owner”). The purchase order called for the payment of $121,166.18 upon completion of the parking lot and related services.

[2] Unimac was the general contractor retained by the Owner to build the retirement home.

[3] Unimac opposes the motion for summary judgment for three fundamental reasons. The first reason relates to deficiencies in the parking lot that Unimac maintains have not been corrected. Unimac also takes the position that there was extra work performed by the plaintiff which was never certified or approved by Unimac and that to the extent those extras form part of the plaintiff’s claim, they are non-recoverable having never been approved or certified. Finally Unimac takes the position that it has not been paid by the Owner for the work performed by the plaintiff and that the amount claimed by the plaintiff is not readily ascertainable having fluctuated during the course of these proceedings.

The Facts

[4] There is no dispute between the parties that the purchase order forms the agreement between the plaintiff and Unimac, pursuant to which the plaintiff would do the work listed in the purchase order and for which Unimac would pay the quoted price of $121,166.18. In reliance on the purchase order, the plaintiff went ahead with the work at the retirement home and on October 21, 2011 the plaintiff provided progress certificate number 1 to Unimac in the amount of $71,674.76, plus HST. The first progress certificate included a number of charges for additional work or extras, which the plaintiff maintains were authorized by Unimac. Unimac now maintains these extras were not authorized. There is no documentary evidence produced by Unimac, contemporaneous in time with the October 2011 progress certificate that disputes the additional work reflected in progress certificate number 1.

[5] On November 18, 2011, Unimac made a partial payment to the plaintiff in connection with the first progress certificate. The partial payment was for $25,000.00. Since then, Unimac has failed to pay the balance of the accounts submitted by the plaintiff.

[6] Additional work was undertaken by the plaintiff and, on December 5, 2011, the plaintiff submitted a further invoice to Unimac in the amount of $67,717.45, plus HST.

[7] The plaintiff’s claim as broken down by the plaintiff is as follows:

Contract Amount (Less H.S.T.) $ 107,226.71 Extra quantities & work to contract $ 41,055.50

$ 148,282.21

Less Credits to Contract $ 8,890.00 $ 139,392.21

H.S.T. – 13% $ 18,120.99 $ 157,513.20

Total Amount Invoiced Including HST $ 72,893.23 (inv#9678)

$ 76,520.72 (inv#9756

$ 8,099.25 (H/B Inc.)

$ 157,513.20

Less partial payment by Unimac $ 25,000.00 (Nov. 18/11)

$132,513.20

[8] On March 13, 2012, Unimac submitted its progress invoice number 22 to the Owner, indicating that $120,000.00, plus HST was due for the plaintiff’s work. The progress draw made by Unimac to the Owner indicated that the plaintiff’s work was 100 per cent complete. It is also particularly noteworthy that on March 2, 2012, Unimac submitted a request for change order to the Owner requesting payment for the plaintiff’s additional work in the amount of $30,310.76, inclusive of HST.

[9] While there is nothing in the purchase order that stipulates that payment for the plaintiff’s services was subject to correcting and rectifying any deficiencies in the plaintiff’s work, Unimac in part resists payment of the plaintiff’s claim on the basis of the failure of the plaintiff to rectify outstanding deficiencies. In that regard, Unimac relies upon a deficiencies report which was prepared for the Owner, which is dated January 18, 2012. This report has, however, been superseded by a subsequent deficiencies report, which is dated December 7, 2012 and has further been superseded by correspondence from counsel for the Owner, dated May 28, 2013 and June 13, 2013, addressed to plaintiff’s counsel. These two letters confirm that all of the deficiencies reflected in the deficiency report of December 10, 2012 have been rectified with the possible exception of grading issues at the east entrance. As to the grading issues, it is the plaintiff’s position that Unimac’s own evidence, as reflected in an email dated December 5, 2011 from Mr. Leon Hui to a representative of the Owner indicates that “the run-off grading is perfect”. Unimac has not put any evidence before this court with respect to outstanding deficiencies, subsequent to the deficiency report of January 18, 2012.

[10] The evidence which was placed before this court by Unimac consisted of an affidavit of Mr. Hui, sworn April 24, 2013, as well as a supplementary affidavit of Mr. Hui, sworn on June 17, 2013. Mr. Hui is the president of Unimac. He was not, however, on site other than on one or perhaps two occasions. The person with firsthand knowledge of what was occurring on site, at the retirement home, was Ken Sui. Mr. Hui was cross-examined on his affidavit on June 18, 2013 and confirmed that Mr. Sui was still an employee of Unimac. It is the position of Mr. Hui that Mr. Sui did not authorize the extras which form, not an insignificant part of the plaintiff’s claim. Despite Mr. Hui’s undertaking on his cross-examination to provide an affidavit from Mr. Sui, confirming that the extras were not authorized, no such affidavit was placed before this court. As such, I have no hesitation in drawing an adverse inference from this failure on the part of Unimac to place affidavit evidence of Mr. Sui before this court addressing the issue of the so-called unauthorized extras.

[11] The documentary evidence placed before this court by the plaintiff is uncontradicted with respect to the extras. There was no correspondence from Unimac disputing the extras until the commencement of these proceedings. The extras were submitted to the Owner for payment. I am satisfied that the extras are properly part of the plaintiff’s claim. As for the deficiencies, I am satisfied, in the absence of any updated experts report from Unimac confirming these are outstanding deficiencies, that the position now taken by the Owner through its counsel in the correspondence submitted in the plaintiff’s supplementary motion record and second supplementary motion record, addresses any issue with respect to outstanding deficiencies.

[12] On a motion for summary judgment, the responding party has an obligation to put its best foot forward in terms of the affidavit evidence that it wishes the court to consider in opposition to the motion advanced by the plaintiff. See Cuthbert v. TD Canada Trust, 2010 ONSC 830 at para. 12. Unimac, in this case, chose to put before this court the affidavit evidence of Mr. Hui who, while he occupies the position of president, was not the person on site dealing directly with the plaintiff. Unimac chose to put in the evidence of Mr. Hui as its case in opposition to the plaintiff’s motion; this even after Mr. Hui was cross-examined on June 18, 2013 and gave an undertaking to put in an affidavit of Mr. Sui, who was the person on site dealing with the plaintiff. Where the evidence of the plaintiff is in conflict with the evidence of Mr. Hui, I have no hesitation in accepting the evidence of the plaintiff as Unimac chose to present its case in the fashion that it did and did not put its best foot forward in putting the evidence of the person who dealt most directly with the plaintiff’s representatives.

[13] Part of the defence advanced by Unimac on this motion relates to the fact that Unimac maintains that it has not been paid by the Owner or the services rendered by the plaintiff. There is an ongoing dispute between Unimac and the Owner that goes far beyond any issues that may be before this court on this motion for summary judgment. There is nothing in the purchase order which forms the contractual relationship between a plaintiff and Unimac which stipulates that the plaintiff would only be paid once Unimac is paid. In the absence of such a condition, where the plaintiff has fulfilled its contractual obligations with Unimac, I see no reason why the plaintiff should have to wait for payment. There is no basis for this defence advanced by Unimac.

[14] The governing law in connection with a motion for summary judgment is now relatively well understood. Fundamentally, this court has to ask itself the question, based on the evidence put before the court by the parties, whether the court has a full appreciation of the evidence such that this court can come to the conclusion that there is no genuine issue requiring a trial. See Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, 2011 CarswellOnt 13515. For the reasons that I have set forth above, I have no hesitation in accepting the evidence and position of the plaintiff. There is no basis for the defences alleged by Unimac. This court does have a full appreciation such that this court can make a determination that Unimac does owe the plaintiff the sum of $132,513.30. The plaintiff shall have judgment in that amount, plus pre-judgment interest, and costs. If the parties cannot resolve the question of pre-judgment interest and costs, written submissions will be received by this court, limited to five pages in length to be received no later than September 30, 2013.

Justice M.L. Edwards

Released: September 9, 2013