COURT FILE AND PARTIES

COURT FILE NO.: CV-11-432029 and
CV-11-432030

DATE: 2014/12/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ben-Air Systems Inc. v. Neilas (799 College St) Inc., Waterview Capital Corp., Laurentian Bank of Canada and Lombard General Insurance Company of Canada;

BEFORE: MASTER WIEBE

HEARD: October 14, 2014;

DECISION: December 12, 2014;

COUNSEL: Kevin Sherkin and Jeremy Sacks for Neilas (799 College St) Inc. (“Neilas”, the moving party;

Adam Wainstock for the Ben-Air Systems Inc. (“Ben-Air”), the responding party.

REASONS FOR DECISION

I. INTRODUCTION

[1] Neilas brings a motion for the following relief: (1) an order reducing the security posted for the Ben-Air claims for lien, and (2) a summary judgment discharging the Ben-Air claims for lien entirely or reducing them.

[2] Neilas relies upon the following points: the former claim of Ben-Air’s subcontractor, Lenar Mechanical Systems Ltd. (“Lenar”,) has been dismissed and this dismissal has eliminated the entirety of the Ben-Air lien claims; after the execution of the contracts there was a reduction of tax included in the contract prices by the amount of PST carried in those prices, a reduction that has not been accounted for by Ben-Air; and Neilas paid $40,000 directly to Desco Plumbing, a subcontractor to Lenar, a direct payment that also has not been accounted for by Ben-Air.

[3] Neilas was the owner of a project for the construction of a condominium in Toronto called “the Cube Lofts,” (“the Project”). Ben-Air was its mechanical contractor.

[4] Ben-Air disputes Neilas positions with the exception of the payment to Desco. As to the Desco payment, Ben-Air accepts this reduction as long as it is accounted for as a payment through the contracts above Desco.

[5] For the reasons stated herein, I deny the motion with the exception of the $40,000 reduction due to the payment to Desco.

II. BACKGROUND

[6] Neilas delivered the affidavit of its officer and director, John Neilas, sworn September 29, 2014, in support of its motion. Ben-Air delivered the affidavit of its principal, Beny Quattrociocchi, sworn October 6, 2014, in response. The following are the facts that do not appear to be in dispute, given the motion material and the submissions of the parties.

[7] On or about June 23, 2009 Ben-Air entered into two written contracts with Neilas whereby Ben-Air would provide mechanical labour and material (including HVAC, plumbing and sprinkling) to the Project. Both contracts were standard CCDC2, Stipulated Price, Contracts. They will be called “the Contracts.” The total of the two stipulated prices in the Contracts was $801,500 plus tax. Ben-Air asserts that there were agreed upon extras that increased the total contract prices to $844,739.15 plus tax.

[8] The Contracts contained a clause specifying that the