SUPERIOR COURT OF JUSTICE - ONTARIO
2014 ONSC 3924
COURT FILE NO.: CV-13-484815
DATE: June 26, 2014
RE: Govan Brown & Associates Limited v Equinox 199 Bay Street Co.; Equinox Holdings/Eclipse Development, Equinox Fitness Center CCW, Equinox Investment Holdings Inc., Equinox V Holdings Limited and BCIMC Realty Corporation
AND RE: Court File No. CV-13-483890
Black & McDonald Limited v BCIMC Realty Corporation, Govan Brown & Associates Ltd., Equinox Holdings Inc, Equinox Fitness Centre, CCW, Equinox Holdings/Eclipse Developments, Equinox Investment Holdings Inc. and Equinox Holdings Limited
AND RE: Court File No. CV-13-485191
Gem Campbell Terrazzo & Tile Inc. v Equinox 199 Bay St. Co. and Equinox Yorkville Co. cob as Equinox Fitness Clubs aka Equinox Holdings aka Eclipse Developments and Govan Brown & Associates Limited
BEFORE: Master C. Albert
COUNSEL:
R. Shastry and D. Winer for plaintiff Govan Brown in action CV-13-484815
Tel: 416-368-2100; Fax: 416-324-4200
C. DiMarco, for plaintiff Black & McDonald in action CV-13-483890
Tel: 416-583-5902; Fax: 416-583-5905
C. Skipper and R. Spinks, for plaintiff Gem Campbell in action CV-13-485191
Tel: 416-941-8821; Fax: 416-941-8852
G. Ackerley and G. Brown, for Equinox defendants in all three actions
Tel: 416-947-5073; Fax: 416-365-1876
M. McGraw, for defendant BCIMC Realty Corporation
Tel: 416-863-4247; Fax: 416-863-2653
HEARD: March 20, 2014 and April 4, 2014
ENDORSEMENT
- Equinox 199 Bay Street Co. (“Equinox 199”) asks the court to declare invalid and discharge three construction lien claims that total $6,062,640.93, and to return to Equinox 199 security of $3,800,203.22[1] posted to vacate the liens. The motions are brought under section 47 of the Construction Lien Act, R.S.O. 1990, c.C.30 (the “Act”) on the basis that the lien claimants failed to correctly identify the owner of the premises in their claims for lien. The targeted liens are:
a) The lien claim registered by Govan Brown & Associates Limited against PIN 21407-0005 on June 10, 2013 as instrument AT3320218 for $4,953,604.61;
b) The lien claim registered by Black & McDonald Limited against PIN 21407-0005 on June 10, 2013 as instrument AT3320812 for $570,000.00; and
c) The lien claim registered by Gem Campbell Terrazzo & Tile Inc. against PIN 21407-0005 on June 7, 2013 as instrument AT3319348 for $539,036.32.
- The lien claimants bring cross-motions to amend their pleadings to add or correctly name Equinox 199 as a defendant, to make the necessary changes that flow from that amendment and in one case to declare the date of substantial completion:
a) Govan Brown seeks to add “Equinox Holdings, Inc.” as a party and to amend its pleading in the form attached as Appendix “A” to its notice of motion. Govan Brown also moves for a declaration that the contract was substantially completed on April 29, 2013.
b) Black & McDonald seeks to substitute “Equinox 199 Bay Street Co.” for “Equinox” in its pleadings, increase its claim in contract by $109,000.00 and amend its pleading in the form of the draft Amended Statement of Claim filed at Tab “N” of its motion record.
c) Gem Campbell seeks to substitute “Equinox Holdings, Inc.” for “Equinox” in its pleading and amend its pleading in the form of the draft Amended Statement of Claim appended to its Cross-Motion Record as Schedule “A”.
The Issues
- Issue #1: The main issue is whether the lien claims are invalidated because the lien claimants failed to strictly comply with subsection 34(5) of the Act by failing to name Equinox 199 as the owner against whose interest the liens are claimed, and whether section 6 of the Act saves any or all of the lien claims:
a) In the motion by Equinox 199 against Govan Brown the issue is whether naming Equinox Holdings/Eclipse Development in the lien claim as the person to whom services and materials were supplied, instead of as owner, is fatal;
b) In the motion by Equinox 199 against Black & McDonald the issue is whether naming Equinox Holdings Inc./Eclipse Developments in the statement that describes the services and materials supplied, instead of in the statement that names the owner, is fatal; and
c) In the motion by Equinox 199 against Gem Campbell, the issue is whether naming Equinox Yorkville Co. as owner in the lien claim instead of Equinox 199 is fatal.
Issue #2: Should the proposed party and pleading amendments be permitted?
Issue #3: What is the date of substantial completion?
Whether the owner of the fee simple, BCIMC Realty Corporation (“BCIMC”), is a statutory owner for purposes of these lien claims, raised by Govan Brown in its motion materials, was withdrawn as an issue on these motions without prejudice to raising it at a later date.
In these reasons, I use the short forms "Equinox 199" for Equinox 199 Bay Street Co. and "Equinox" when referring to all Equinox entities.
Background
BCIMC is the registered owner of the commercial and retail office building known as Commerce Court West (“CCW”). By lease agreement dated April 12, 2012 Equinox 199 contracted with BCIMC to lease the second and third floors of CCW for a fitness club for a 16 year term. The lease is not registered on title.
Improvements were required to build out the space for this use and Equinox 199 embarked on an improvement project (the “project”).
Equinox 199 contracted with Govan Brown on October 26, 2012 to act as construction manager for the project. Rather than contracting in its registered corporate name, Equinox 199 executed the contract using the name “Equinox Holdings/Eclipse Developments”, defined as “owner” in the Govan Brown contract. The printed name of the person who signed the contract on behalf of these unincorporated entities is Khidir Abdalla, identified as “V.P.”, although it is unclear of what he is “V.P.”. The contract was not signed under corporate seal.
Govan Brown contracted with Black & McDonald on October 4, 2012 to supply electrical and lighting services and materials to the project. This subcontract refers to and defines “Equinox Holdings/Eclipse Developments” as owner of the premises.
Govan Brown contracted with Gem Campbell on October 4, 2012 to supply tile, stone and cork flooring to the project. The subcontract refers to and defines “Equinox Holdings/ Eclipse Developments” as owner of the premises.
Equinox Holdings/Eclipse Developments is neither a registered company nor a registered business name in Canada under the Business Names Act, R.S.O. 1990, c.B.17 which prohibits a corporation from carrying on business in a name other than a registered name.
(…continues exactly as in the decision with all paragraphs and footnotes preserved…)
Master C. Albert
DATE: June 26, 2014