CITATION: Conundrum Capital Corporation v. Century Plumbing and Heating, 2015 ONSC 2924
COURT FILE NOs.: CV-11-419548;
CV-11-419637-00A1;
CV-11-419637 B1;
CV-14-419636-00A1;
CV-14-419636 B1
DATE: 20150511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CV-11-419548
CONUNDRUM CAPITAL CORPORATION
Plaintiff
– and –
CENTURY PLUMBING AND HEATING and OXFORD PROPERTIES GROUP and
ADT SECURITY SERVICES CANADA INC./INTERCON SECURITY LIMITED and BROOKFIELD PROPERTIES LTD.
Defendants
BETWEEN:
CV-11-419637-00A1
OXFORD PROPERTIES GROUP INC., OPGI MANAGEMENT GP INC. AS GENERAL PARTNER OF THE OPGI MANAGEMENT LIMITED PARTNERSHIP, OMERS REALTY CORPORATION, OMERS REALTY CTT HOLDINGS INC. and OMERS REALTY CTT HOLDINGS TWO INC.
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING ON BUSINESS AS CENTURY PLUMBING AND HEATING
Defendant
– and –
ADT SECURITY SERVICES CANADA INC./INTERCON SECURITY LIMITED
Third Parties
BETWEEN:
CV-11-419637 B1
OXFORD PROPERTIES GROUP INC., OPGI MANAGEMENT GP INC. AS GENERAL PARTNER OF THE OPGI MANAGEMENT LIMITED PARTNERSHIP, OMERS REALTY CORPORATION, OMERS REALTY CTT HOLDINGS INC. and OMERS REALTY CTT HOLDINGS TWO INC.
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING ON BUSINESS AS CENTURY PLUMBING AND HEATING
Defendant
– and –
BROOKFIELD PROPERTIES LIMITED
Third Party
– and –
INTERCON SECURITY LIMITED
Fourth Party
BETWEEN:
CV-14-419636-00Al
MARSH CANADA LIMITED and
MERCER (CANADA) LIMITED
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING BUSINESS AS CENTURY PLUMBING AND HEATING
Defendant
– and –
OXFORD PROPERTIES GROUP INC., OPGI MANAGEMENT GP INC. as general partner of the OPGI MANAGEMENT LIMITED PRATNERSHIP, OMERS REALTY CORPORATION, OMERS REALTY CTT HOLDINGS INC. and OMERS REALTY CTT HOLDINGS TWO INC. and ADT SECURITY SERVICES CANADA INC./INTERCON SECURITY LIMITED
Third Parties
BETWEEN:
CV-14-419636 B1
MARSH CANADA LIMITED and
MERCER (CANADA) LIMITED
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING ON BUSINESS AS CENTURY PLUMBING AND HEATING
Defendants
– and –
BROOKFIELD PROPERTIES LIMITED
Third Party
– and –
INTERCON SECURITY LIMITED
Fourth Party
Peter K. Boeckle, for the Defendant Century Plumbing and Heating
John K. Downing, for the Defendant ADT Security Services Canada Inc./Intercon Security Limited
Peter K. Boeckle, for the Defendant Centennial Plumbing and Heating Limited carrying on business as Century Plumbing and Heating
John K. Downing, for the third parties, ADT Security Services Canada Inc. and Intercon Security Limited
Peter K. Boeckle, for the Defendant Centennial Plumbing and Heating Limited carrying on business as Century Plumbing and Heating
John K. Downing, for the fourth party Intercon Security Limited
Peter K. Boeckle, for the Defendant Centennial Plumbing and Heating Limited carrying on business as Century Plumbing and Heating
John K. Downing, for the third party, ADT Security Services Canada Inc./Intercon Security Limited
Peter K. Boeckle, for the Defendant Centennial Plumbing and Heating Limited carrying on business as Century Plumbing and Heating
John K. Downing, for the fourth party, Intercon Security Limited
HEARD: April 24, 2015
REASONS FOR DECISION
Diamond j.:
Introduction
[1] On April 24, 2015, I heard five identical motions for summary judgment brought by ADT Security Services Canada Inc. (“ADT”) and Intercon Security Limited (“Intercon”) arising from ADT and Intercon being named as defendants, third parties and/or fourth parties in three separate legal proceedings. The particulars of those proceedings are as follows:
(a) In Action No. CV-11-419548, the plaintiff Conundrum Capital Corporation (“Conundrum”) sued Century Plumbing and Heating (“Century”, and properly known as Centennial Plumbing and Heating Limited), Oxford Properties Group (“Oxford”), Brookfield Properties Ltd. (“Brookfield”), ADT and Intercon.
(b) In Action No. CV-14-419636, the plaintiffs Marsh Canada Limited (“Marsh”) and Mercer (Canada) Limited (“Mercer”) sued Century. Century then commenced third party proceedings against, inter alia, Oxford, Brookfield, ADT and Intercon. Brookfield in turn instituted fourth party proceedings against Intercon.
(c) In Action No. CV-11-419637, Oxford commenced legal proceedings against Century. Once again, Century then commenced third party proceedings against Brookfield, ADT and Intercon. Brookfield in turn commenced fourth party proceedings against Intercon.
[2] ADT and Intercon bring their motions for summary judgment to dismiss, as against them: (a) Conundrum’s claim, (b) Century’s third party claim in the Marsh action, (c) Brookfield’s fourth party claim in the Marsh action, (d) Century’s third party claim in the Oxford action, and (e) Brookfield’s fourth party claim in the Oxford action.
[3] Save for Century, all of the other parties in every action are either consenting or not opposing the relief sought by ADT and Intercon. Century is the only party opposing these motions, and takes the position that there are genuine issues requiring a trial for the reasons set out hereinafter.
Overview
[4] Most of the facts giving rise to the claims are not in dispute.
[5] ADT carries on business as a provider of residential and commercial security systems. Intercon carries on business as a provider of security services and security guard services.
[6] All three actions arise out of an incident which occurred on February 12, 2009 on certain floors of the TD Canada Trust Tower (the “Tower”), 161 Bay Street, Toronto, Ontario. As a result of the incident, flooding occurred on several floors of the Tower and various offices experienced significant water damage.
[7] The plaintiffs in each action allege that Century failed to properly resolder a copper elbow joint on the water line servicing a radiator on the 22nd floor in the Tower. The work undertaken by Century took place during the evening of February 10, 2009 and the early morning of February 11, 2009.
[8] Century in turn has sought, inter alia, contribution and indemnity from ADT and Intercon for negligence, breach of duty and want of care.
The BAS System
[9] The heating system involves a boiler located on the 52nd floor that heats water as well as various pumps that circulate the heated water in a closed loop system. There are radiators located along the base of the outside walls on each floor along with controlled valves and thermostats
[10] The Tower is part of a complex known as Brookfield Place (“Brookfield”). At the relevant time period, Brookfield owned, operated and maintained a Building Automation System (“BAS”), which was a computer system that controlled and monitored various building systems including the heating and ventilation system. There is no dispute that ADT/Intercon had any involvement in the design, installation or testing of the BAS.
[11] The computer for the BAS is located in the Operations Office on the P1 parking level of the premises (the “Building Operations Office”). Neither ADT nor Intercon were ever required to control, staff or monitor the screens in the Building Operations Office, which was exclusively staffed by Oxford employees during business hours and Brookfield employees at night.
[12] If a loss of pressure in the water pipes feeding the heating system occurs, a low pressure alarm in the BAS is triggered. This would result in an audible alarm (described by the parties as a “computer beep”) in the Building Operations Office. A banner would also be displayed on the computer screens.
[13] The low pressure alarm would also be sent from the BAS in the Building Operations Office to a computer monitor located in the security control room on the Concourse Level of the premises (one level above the Building Operations Office). This computer monitor has been described by the party as the “alarm poller”.
[14] The security control room is staffed by Intercon employees and houses numerous systems and screens all monitored by Intercon.
[15] The purpose of the alarm poller was to ensure that BAS alarms were forwarded to the security control room so that Brookfield employees did not need to be in the Building Operations Office at all times. Intercon/ADT has described the alarm poller as a “dumb terminal” in that it displayed information sent by the BAS in the Building Operations Office to the security control room. There was no ability to control the BAS from the alarm poller.
[16] A low pressure alarm would normally produce a sound (again, a “computer beep”) in the security control room (via the alarm poller) as well as display a pop-up window on the alarm poller.
[17] Century alleges that a main purpose of the BAS was to detect drops in water pressure within the plumbing system in the premises, and alert building or security staff of same. Century further alleges that the BAS failed to function as intended or was not properly monitored by ADT/Intercon, and that ADT/Intercon were the parties responsible for the monitoring of the BAS and were negligent in respect to the provision of those monitoring services.
[18] There is no evidence that ADT entered into any agreement with Brookfield on this motion. Intercon did enter into a Standard Security Guard Services Agreement with Brookfield to provide “security guard services” within the premises.
The Staffing
[19] In the evening, the security control room is staffed by an Intercon Building Control Officer (the “BCO”) who stays in the office at all times.
[20] In addition to the BCO, other Intercon security officers are on duty during the evening, and perform services such as patrolling the common areas of the premises.
[21] After midnight, Intercon security officers conduct one floor by floor check of the Tower to ensure that doors to tenants’ offices are secure and there are no other apparent issues requiring attention.
[22] Intercon security officers are not required to patrol tenant areas unless they were found to be insecure, except for those tenants who may have entered into separate security agreements with Intercon to monitor their specific units.
[23] Of note, Intercon had no agreement to patrol the tenant unit where the flood commenced, namely, the Conundrum office located on the 22nd floor of the premises.
[24] Intercon had an obligation to report alarms received in the security control room from the BAS system to Brookfield. Once the BCO reached a Brookfield building operations employee, the BCO would read the alarm describer to him/her. At that point, Intercon had no further responsibility to deal with the alarm or the incident causing the alarm as the responsibility for doing so rests with Brookfield once it was alerted to the alarm by the BCO (or other Intercon security officer).
[25] The BCO records the alarms received by the security control room related to any “incident” in an occurrence log. After an “incident”, Intercon would also prepare an incident report for review and approval by Brookfield. There does not appear to be any universal definition of the term “incident”. It is Intercon’s position that its protocol with Brookfield does not require each and every alarm received by the security control room to be documented. According to Intercon, only alarms which evidence a “true incident” (such as the flood in this case) would be documented in the incident report. Century takes issue with Intercon’s position for reasons set out hereinafter.
[26] In addition, Intercon submits that the premises are divided into three zones for the purpose of the BAS: floors 2-15 are the “low-rise zone”, floors 16-30 are the “mid-rise zone”, and floors 31-51 are the “high-rise zone”. The mid-rise and high-rise zones are interconnected in the sense that there is one pressure sensor for both zones located on the 52nd floor where the boiler is located. Once again, Century takes issue with Intercon’s position for reasons set out hereinafter.
The Flood
[27] On February 12, 2009, the security log for the premises shows a pass code being swiped by an Intercon security guard shortly after midnight at various floors with a view to completing the review of the tenant office doors. No water leaks were known or identified at that time.
[28] The Intercon occurrence log discloses that at 1:55 a.m., the Intercon desk officer in the lobby of the premises advised the BCO by telephone that water was dripping in passenger elevators 10 and 11. Around the same time, an alarm was received from passenger elevator 10. The BCO immediately notified the Brookfield building operator, the on-duty Intercon supervisor, and two Intercon patrol officers of a “code blue” which means a flood.
[29] The occurrence log indicates that the BCO received a call by radio at 2:00 a.m. indicating that the source of the leak was found on the 22nd floor of the premises (the Conundrum office). There is no dispute that once being notified of the “code blue”, the Brookfield and Intercon security and control officers began the search for the source of the leak. That search was orchestrated by Brookfield personnel, and shortly thereafter, as stated above, water was found in the lobby of the Conundrum office.
[30] The Intercon incident report noted that the Brookfield building operator determined the source of the leak to be a half-inch copper water line in the radiator that had burst at a solder joint. The water supply and return valve in the adjacent office were then shut off.
The 1:06 am and 1:24 am Alarms
[31] On this motion, Century relies upon a BAS alarm displayed on the alarm poller at 1:06 a.m. on the night of the incident. Century submits that Intercon had an obligation to report that 1:06 a.m. BAS alarm, like every other alarm, to Brookfield.
[32] The 1:06 a.m. BAS alarm was not recorded by the BCO working in the security control office. Intercon asserts that the 1:06 a.m. BAS alarm was “unrelated” and had nothing to do with the flood. Intercon submits that if the 1:06 a.m. BAS alarm was of any significance, it would have been recorded in the occurrence log. As it was not, it could not have related to anything serious and/or anything to do with the flood.
[33] In support of this position, Intercon points to an additional alarm received in the building operations office at 1:24 a.m. that same morning. There is no dispute that this 1:24 a.m. alarm related to a low water pressure sensor (a pre-cursor for the flood). Unfortunately, no Brookfield personnel were in the building operations office at the time of the 1:24 a.m. low pressure alarm. As previously stated, Intercon had no responsibility with respect to the Building Operations office as it was manned, operated and supervised by Brookfield.
[34] Further complicating the matter is the fact that the 1:24 a.m. low pressure alarm was not received on the alarm poller located in the security control room. This was due to the fact that the BAS alarm system had frozen on the morning of the incident. There was no explanation given for why the BAS alarm system had frozen, but the parties seemed to be in agreement that the BAS alarm system did in fact freeze. There is evidence in the Record that a company contracted by Brookfield to maintain the BAS performed a service call to test the system and concluded that it was working at the time of the test but it had indeed frozen on the night of the incident, albeit without explanation.
[35] Intercon points to the log book entry made by a Brookfield employee following the incident which states as follows:
“At approximately 01:50 security called regarding water leaking in the mid-low elevator #10. Went to investigate the leak and started checking for water leak from 28th floor down and security from 16th floor up. Found water leaking from the 22nd floor o/i perimeter rad. The 1/2” copper elbow had come apart from the nipple causing water to spray everywhere. Rad now isolated. On our way down to get the vacuums. Checked P1 office for alarm and noticed that there was a mid-high water pressure alarm. It came in at 01:24. Checked with security and was told they never received the alarm. The last alarm they got was at 01:06. I checked security alarm poller and found the same. The system had frozen.”
[36] Intercon’s evidence is that had it received the 1:24 a.m. low pressure alarm in the security control room; according to protocol the alarm would have been reported in both the occurrence log and the incident report. There was no ability for Intercon to delete any low pressure alarm that it had received on the alarm poller in the security control room or in any way control, revise or adjust the BAS. It is obvious that the alarm poller computer must have frozen at some point between 1:06 a.m. (the time of the last alarm received) and 1:24 a.m. (the time when the low pressure alarm was registered on the BAS but not transmitted to the alarm poller) in the morning of February 12, 2009.
[37] There is essentially no direct evidence before this Court as to the purpose of, or the incident (if any) related to the 1:06 a.m. BAS alarm.
[38] Of note, Brookfield has admitted that the alarm poller failed at the time of the incident.
The Video
[39] Century submits that the 1:06 a.m. alarm must have had something to do with the flood, and having received the 1:06 a.m. alarm on the alarm poller, Intercon failed to discharge its obligations, report the alarm and take the additional necessary steps. In support of that position, in late May 2014 (nearly one year before the hearing of these motions for summary judgment), Conundrum produced a surveillance video capturing the evening and early morning of the flood inside the Conundrum office. This was a video unrelated to the BAS or any other systems managed or operated by Brookfield and/or Intercon (i.e. Conundrum’s own closed circuit video).
[40] The video was played for me during submissions made by counsel for Century at the hearing of these motions. It is conceded (and readily obvious) that the “time stamp” on the video is incorrect. For example, water advanced on the floor of the hallway outside the office (in which the leaking pipe was located) at 7:12 a.m. according to the time on the video (“video time”).
[41] When the video was delivered by Conundrum to the parties in these actions, the e-mail enclosing the video from counsel for Conundrum stated as follows:
“By rough estimation, it appears that the time stamp on the video is six hours ahead.”
[42] There is no evidence from Conundrum, or any employee, agent or other individual with specific knowledge of the difference between the video time and the actual time on the morning in question. While the e-mail from Conundrum’s counsel is certainly not “evidence”, at its highest it provides a rough estimation that the video time is six hours ahead of real time, without any explanation or foundation.
[43] In any event, and to ensure that Century’s argument is properly addressed by these reasons, I shall summarize the submissions of counsel for Century.
[44] The occurrence log has no entry at 1:06 a.m. or 1:24 a.m. At 1:55 a.m. the following notation is made:
“S6 advised BCO that water is dripping in P10, P11 CTT. Delta One S3, S5, S8 Unicco advised code blue.”
[45] The salient portions of the notes made by the building operator on duty that morning have been set out earlier in these reasons. In displaying the video to this Court, and attempting to make some allowance for the time it would have taken for (a) the water to escape the first office where the valve burst and enter the hallway, and (b) the time for the patrol and security officers to search, arrive and locate the source of the leak, Century submits that the water must have started leaking earlier than 1:24 a.m.
[46] On the video, the security and patrol officers arrive at approximately 7:54-7:55 a.m. “video time”. As stated above, water is seen in the Conundrum office hallway at approximately 7:12 a.m. “video time”.
[47] According to the occurrence log and incident report, the security and patrol officers located the source of the leak at approximately 2:00 a.m. real time. If Century’s position is correct (i.e. the video is approximately six hours ahead), and the 1:06 a.m. alarm was related to a low water pressure issue, then the leak must have actually occurred prior to 1:06 a.m. as it would have taken more than 5-6 minutes for water to fill the adjacent office and then spill into the hallway.
Additional Matters
[48] Century submits that its expert Robert Sparling was unable to examine the BAS computer system to determine whether there is a log or record of codes generated by the BAS system on the morning of the incident, which, according to Century could assist in determining whether the 1:06 a.m. alarm was in any way related to the low water pressure issue. I note that a court Order was obtained permitting Mr. Sparling to investigate the BAS computer system on September 9, 2014, but not issued until February 12, 2015 due to a dispute between parties as to the settlement of that Order. No such attendance was scheduled or carried out between the date of the Order (or its issuance) and the hearing of these motions.
[49] I further note that Mr. Sparling’s engineering firm had already attended to inspection of the BAS system in 2012, albeit for different purposes. It was also the evidence of Century that it had yet to provide any written instructions of any kind to Sparling as to his proposed third inspection of the BAS system.
[50] Finally, on April 22, 2015, counsel for Brookfield advised by written correspondence, purporting to answer outstanding undertakings, that the 1:24 a.m. low pressure alarm would have been the first alarm associated with this incident, and could only be triggered once. In other words, a low pressure alarm could not occur at 1:06 a.m. and then subsequently re-occur at 1:24 a.m. Once the low pressure alarm is triggered, it does not re-trigger if the pressure continues to decrease.
[51] As noted by counsel for Intercon, why would Brookfield take such a position, and for that matter not oppose the relief sought on these motions, unless it agreed that there was no negligence on the part of Intercon? It would not serve Brookfield’s interests to take such positions in these proceedings which essentially amount to statements against their own interest.
Summary Judgment
[52] Rule 20.04(2)(a) of the Rules of Civil Procedure now provides that the Court shall grant summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
[53] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada established a road map in terms of how a motions judge should approach a motion for summary judgment. The Court must first determine whether there is a genuine issue requiring a trial based only upon the evidence filed with the Court and without using the new fact finding powers set out in the 2010 amendments. Summary judgment will thus be available if there is sufficient evidence to justly and fairly adjudicate the dispute, with the motion being an affordable, timely and proportionate procedure.
[54] If the Court finds the presence of a genuine issue requiring a trial, the motions judge must then determine if the need for a trial can be avoided by using the new, enhanced powers under Rules 20.04(2.1) and (2.2).
[55] The Court of Appeal for Ontario subsequently held in Baywood Homes Partnership v. Haditaghi 2014 ONCA 450 that summary judgment is appropriate where it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (my emphasis). The Court is obliged to assess the advisability of a summary judgment process in the context of the litigation as a whole. As stated by the Supreme Court of Canada in Hryniak:
“The “interests of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against the single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”
[56] It is important to remember that the applicable evidentiary principles developed under the previous incarnation of Rule 20.04 continue to apply. The motions judge must still take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its “best foot forward” and submit cogent and compelling evidence to support or oppose the relief sought. As I stated in Forestall v. Caroll 2015 ONSC 2732, a moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party’s obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.
[57] To repeat my conclusion in Forestall, the purpose of the enhanced powers under Rule 20.04 does not include allowing a party to buttress a deficient evidentiary record through the use of a mini-trial. That power is reserved for the Court once it is satisfied that a moving party has placed a full record before the Court, and the Court requires some additional evidence in order to resolve the presence of a genuine issue requiring a trial.
[58] As succinctly summarized by Justice Perell in Miaskowski (Litigation Guardian of) v. Persaud 2015 ONSC 1654, Hryniak “does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial”. On a motion for summary judgment, the Court is entitled to presume that the parties have tendered all of the available admissible evidence in order to determine whether a genuine issue requiring a trial exists. While the onus is on the moving party to show that there is no genuine issue requiring a trial, the responding party must still present its best case or risk losing.
Decision
[59] In opposing Intercon’s motions for summary judgment, Century’s position has narrowed from the original theory of liability set out in the various claims, third party claims and fourth party claims. Essentially, Century’s position is that the 1:06 a.m. alarm “must” (or at a minimum “could”) have been related to the low water pressure caused by the leak, and thus there is a genuine issue requiring a trial, namely, whether Intercon failed to monitor and/or report the 1:06 a.m. alarm.
[60] Century does not really dispute that the 1:24 a.m. alarm related to low water pressure, and unfortunately Intercon never received that 1:24 a.m. alarm on the alarm poller due to the BAS system freezing. Once notified of the leak (located in the elevators), Intercon acted accordingly and in furtherance to its duties and obligations. However, Century submits that if the 1:06 a.m. alarm was related to the low water pressure, Intercon was negligent in failing to monitor and report that alarm, and had it done so it (and Brookfield) could have prevented the subsequent damages from occurring.
[61] The evidence relied upon by Intercon supports its position that the 1:06 a.m. alarm had nothing to do with low water pressure, and was completely unrelated to the flood. Consider the following:
a) The Brookfield employee’s logbook noted the 1:24 a.m. water pressure alarm received on the BAS system in the Building Operations Office. In reviewing the BAS system that morning, the employee would have seen all of the alarms which occurred on February 11-12, 2009 including the 1:06 a.m. alarm. This Court would need to be convinced that the Brookfield employee negligently or intentionally noted the wrong time in his logbook. There is no evidence in the record to support such a position; this makes no objective sense in any event as Brookfield is not opposing the relief sought by ADT/Intercon.
b) Brookfield’s position is that once a low pressure alarm is triggered, it does not “re-trigger” or cause a second alarm to ensue. In other words, the individuals monitoring the BAS system and/or alarm poller are given notice once via the low pressure alarm that something is amiss. This does make objective sense as the entire point of a sensitive, encompassing alarm system like the BAS is to ensure that actions are taken immediately in response to potential incidents if necessary. To accept Century’s position would mean that even if there was a “two warning system” (and there is no evidence to support this contention), eighteen minutes passed between the two low pressure alarms (1:06 a.m. and 1:24 a.m.). Considering it took security personnel approximately five minutes to locate the leak and shut off the water valve (i.e. designed to ensure a quick response), why would the BAS system wait eighteen minutes to send a “reminder” alarm?
[62] The evidence tendered by Century to suggest the presence of a genuine issue requiring a trial is far from “leading trump”, and is arguably inadmissible in any event. Armed with the obligation to present its best foot forward with cogent, admissible evidence, Century relies upon two main arguments: the Conundrum video and Mr. Sparling’s yet to be scheduled examination of the BAS system.
[63] In my view, the video is evidence of the existence of a video, and nothing more. No one from Conundrum gave any evidence on this motion as to how Conundrum’s internal video recording system functions, why the time stamp was in error or whether the time stamp could be correlated to the actual time. Perhaps a third party expert could have accomplished this task by reviewing the Conundrum video system and cross-referencing the video with external or internal factors or events to provide an opinion.
[64] What counsel for Century attempted to do during his submissions was play the video in real time while cross referencing the entries made in the occurrence log and the incident report. To begin, such submissions are not evidence. While I understand and appreciate counsel’s efforts to try and make sense of the video time, Century had an obligation to put its best foot forward and lead evidence to show that genuine issues requiring a trial exist on the record filed with the Court. As stated above, such evidence could have taken the form of an affidavit from a Conundrum employee, or perhaps an expert giving opinion evidence. No evidence was tendered at all on these points by Century.
[65] It is trite to state that the email from counsel for Conundrum estimating the video time to be “approximately six hours ahead” is not evidence. On the facts of this case, and as argued by Century itself, minutes counted. If the filing of the video itself, in the absence of any admissible evidence to assist the Court in determining the actual time contemporaneous with the events captured on the video, amounts to Century’s best foot forward, then in my view it has failed to establish the presence of a genuine issue requiring a trial, especially in face of the evidence relied upon by Intercon as summarized above.
[66] With respect to Mr. Sparling’s inability to conduct a (third) examination of the BAS system to determine whether Intercon would have been notified of the BAS system freezing on the morning in question, Mr. Sparling has been retained by Century since August 2010. His first examinations of the BAS system took placed in May 2012 and August 2012. While a court Order was necessary for Mr. Sparling to secure an attendance for a third examination, the Order was obtained in September 2014.
[67] Mr. Sparling has had approximately four and a half years to conduct the examination Century submits is necessary to learn “if” Intercon may have known about the BAS system freezing on the night in question. This delay occurred both before and after the scheduling of these motions for summary judgment. Further, there is no other evidence in the record other than Century’s postulation to support Mr. Sparling’s theory (which is not even a theory but more of a guess).
[68] Again, Century has not lead trump despite its obligation to do so. Even armed with a court Order, no such third examination has taken place. Century did not request an adjournment of these motions for summary judgment, but instead argued them on the merits and asked this Court to allow Mr. Sparling to have “another day” to conduct his examination.
[69] There is not “another day”. The day to present evidence of the results of the contemplated examination was the day these motions were argued. Century did not present any such evidence, and ought not to be afforded a further chance to do so either at a trial, or at a mini-trial (had I been satisfied that the record before me warranted the exercise of the enhanced powers under Rule 20.04(2.1) or (2.2)).
[70] Finally, there are no risks of duplicative proceedings or inconsistent findings of fact when the balance of the issues in these proceedings are tried as every other party in all three actions has either consented or is not opposing the relief sought by ADT/Intercon.
[71] In the result, I therefore grant summary judgment in favour of ADT and Intercon and the claims, third party claims and fourth party claims against ADT and Intercon are hereby dismissed.
[72] I would urge the parties to agree upon the costs of this motion. In the event such an agreement cannot be achieved, I would ask that ADT/Intercon and Century exchange and file written submissions, limited to four pages including a Costs Outline, in accordance with the following schedule:
(a) ADT/Intercon shall serve and file its submissions within 10 business days of the release of these reasons; and
(b) Century’s responding costs submissions to be served and filed within 10 business days thereafter.
Diamond J.
Released: May 11, 2015
CITATION: Conundrum Capital Corporation v. Century Plumbing and Heating, 2015 ONSC 2924
COURT FILE NOs.: CV-11-419548;
CV-11-419637-00A1;
CV-11-419637 B1;
CV-14-419636-00A1;
CV-14-419636 B1
DATE: 20150511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CV-11-419548
CONUNDRUM CAPITAL CORPORATION
Plaintiff
– and –
CENTURY PLUMBING AND HEATING and OXFORD PROPERTIES GROUP and
ADT SECURITY SERVICES CANADA INC./INTERCON SECURITY LIMITED and BROOKFIELD PROPERTIES LTD.
Defendants
BETWEEN:
CV-11-419637-00A1
OXFORD PROPERTIES GROUP INC., OPGI MANAGEMENT GP INC. AS GENERAL PARTNER OF THE OPGI MANAGEMENT LIMITED PARTNERSHIP, OMERS REALTY CORPORATION, OMERS REALTY CTT HOLDINGS INC. and OMERS REALTY CTT HOLDINGS TWO INC.
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING ON BUSINESS AS CENTURY PLUMBING AND HEATING
Defendant
– and –
ADT SECURITY SERVICES CANADA INC./INTERCON SECURITY LIMITED
Third Parties
BETWEEN:
CV-11-419637 B1
OXFORD PROPERTIES GROUP INC., OPGI MANAGEMENT GP INC. AS GENERAL PARTNER OF THE OPGI MANAGEMENT LIMITED PARTNERSHIP, OMERS REALTY CORPORATION, OMERS REALTY CTT HOLDINGS INC. and OMERS REALTY CTT HOLDINGS TWO INC.
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING ON BUSINESS AS CENTURY PLUMBING AND HEATING
Defendants
– and –
BROOKFIELD PROPERTIES LIMITED
Third Party
– and –
INTERCON SECURITY LIMITED
Fourth Party
BETWEEN:
CV-14-419636-00Al
MARSH CANADA LIMITED and
MERCER (CANADA) LIMITED
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING BUSINESS AS CENTURY PLUMBING AND HEATING
Defendant
– and –
OXFORD PROPERTIES GROUP INC., OPGI MANAGEMENT GP INC. as general partner of the OPGI MANAGEMENT LIMITED PRATNERSHIP, OMERS REALTY CORPORATION, OMERS REALTY CTT HOLDINGS INC. and OMERS REALTY CTT HOLDINGS TWO INC. and ADT SECURITY SERVICES CANADA INC./INTERCON SECURITY LIMITED
Third Parties
BETWEEN:
CV-14-419636 B1
MARSH CANADA LIMITED and
MERCER (CANADA) LIMITED
Plaintiffs
– and –
CENTENNIAL PLUMBING AND HEATING LIMITED CARRYING ON BUSINESS AS CENTURY PLUMBING AND HEATING
Defendants
– and –
BROOKFIELD PROPERTIES LIMITED
Third Party
– and –
INTERCON SECURITY LIMITED
Fourth Party
REASONS FOR DECISION
Diamond J.
Released: May 11, 2015