CITATION: Architectural Millwork v. Provincial Store, 2015 ONSC 4913
COURT FILE NO.: 831/13
DATE: 20150805
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ARCHITECTURAL MILLWORK & DOOR INSTALLATIONS INC.
W. Sarasin, for the Plaintiff
Plaintiff
- and -
PROVINCIAL STORE FIXTURES LTD.
L. Goldberg, for the Defendant
Defendant
HEARD: July 6, 2015
Grace J.
[1] Provincial Store Fixtures Ltd. (“Provincial”) hired Architectural Millwork & Door Installations Inc. (“AMDI”) to install millwork, doors, hardware and accessories at a project known as the OLG Casino project in Brantford, Ontario (the “OLG Casino Project”).[^1]
[2] Some payments were made on account of the invoices AMDI delivered. However, AMDI claims that the principal amount of $126,994.55 remains owing.[^2]
[3] Provincial resists payment for two reasons. First, it notes that AMDI’s claim ignores a credit memo AMDI issued on January 31, 2012 in the amount of $65,298.24 (the “Credit Memo”). Second, Provincial alleges that damages have been sustained in excess of the amount claimed by reason of AMDI’s defaults on other projects. It asserts a right of set-off pursuant to s. 12 of the Construction Lien Act, R.S.O. 1990, c. C.30 (the “CLA”).
[4] AMDI seeks summary judgment. It argues that application of the principles set forth in Hryniak v. Mauldin, 2014 SCC 14 (“Hryniak”) demonstrates that there is no genuine issue requiring a trial: rule 20.04(1)(a) of the Rules of Civil Procedure.
A. The Evidence
[5] AMDI relies on affidavits of its president Noel Corrigan sworn September 13, 2013 and January 12, 2015 (collectively the “Corrigan affidavits”). Provincial relies on the affidavit of its Project Director, Regina Dee sworn November 13, 2014 (the “Dee affidavit”).
[6] The following facts are not in dispute:
a. Provincial manufactures and supplies millwork products. From time to time, it subcontracted the installation of millwork to AMDI;
b. Provincial was retained by Govan Brown Management & Associates Inc. and two related companies[^3] (collectively “Govan Brown”) as the millwork supplier and installer at the OLG Casino Project;
c. The millwork installation was subcontracted to and performed by AMDI;
d. The OLG Casino Project involved multiple phases. Save for the holdbacks, AMDI was paid the amounts it invoiced for phases 1 and 2. Invoices delivered in respect of phases 3, 4 and 5 and the holdbacks are in issue.
[7] While Provincial’s statement of defence questioned the quality of the work performed by AMDI on the OLG Casino Project, that issue was not raised in the Dee affidavit.
[8] The failure by AMDI to take the Credit Memo into account when calculating the outstanding principal balance is the only dispute insofar as the OLG Casino Project is concerned. The Credit Memo was attached to the Dee affidavit. It is dated January 31, 2012, bears number 3983 and is in the tax-inclusive amount of $65,298.24.
[9] As noted, AMDI alleges that the principal amount of $126,994.55 is due. That amount was calculated by deducting a $43,121.61 payment from the following invoices totaling $170,116.16. Particulars follow.
| Invoice Date | Invoice Number | Invoice Amount (including taxes) and brief description |
|---|---|---|
| May 5, 2011 | 3690 | $86,243.23 (for installation work undertaken on Phases 3, 4 and 5) |
| May 30, 2011 | 3722 | $44,353.23 (for installation work undertaken on Phases 3, 4 and 5) |
| June 24, 2011 | 3756 | $14,340.25 (for installation work undertaken on Phases 3, 4 and 5) |
| January 31, 2012 | 3984 | $24,503.25 (for the holdbacks on various invoices including 3690, 3722 and 3756) |
| January 31, 2012 | 3991 | $676.20 (for the holdbacks on two other invoices) |
[10] If the Credit Memo is applied, the principal balance owing in respect of the OLG Casino Project is reduced to $61,696.31.
[11] In its amended statement of defence, Provincial asserted a right of set-off in relation to projects in Toronto and Calgary.
[12] Ms. Dee’s focus was on a project in Toronto involving the Ismaili Centre, the Aga Khan Museum and a parking garage. It was described collectively as the “Imara Project”.
[13] In 2011, Provincial issued purchase orders to AMDI to install millwork, doors and related hardware at the Imara Project.
[14] Ms. Dee alleges that problems surfaced in April, 2013 because AMDI did not have enough personnel on site to complete its work in a timely fashion. In September 2013, the general contractor, Carillion Construction Inc. (“Carillion”), notified Provincial that due to installation delays it was in default of its subcontract. Carillion advised Provincial of its intention to hold Provincial financially responsible.
[15] In turn, Provincial sent a similar notice to AMDI. Ms. Dee alleged that AMDI failed to attend on-site on or after October 30, 2013. A notice of abandonment was sent that day.
[16] The numbers appearing in the Dee affidavit are difficult to follow. However, it appears that Provincial alleges it will pay an additional $305,294.87 to have the work completed by others.[^4] That amount would more than extinguish the sum claimed by AMDI in this action whether the Credit Memo applies or not.
[17] In his supplementary affidavit, Mr. Corrigan acknowledged that portions of the Imara Project were “not completed in the time that was originally contemplated”. However, he maintains that responsibility lies with Carillion and Provincial, not AMDI.
[18] In December, 2013, AMDI registered claims for lien with respect to the lands on which the Imara Project was constructed. Thereafter, AMDI commenced a number of construction lien actions in Toronto against Provincial and other defendants (collectively the “Imara construction lien actions”). Provincial has defended the actions and counterclaimed. I understand the Imara construction lien actions are being managed by Master Charles Wiebe.
B. Analysis and Decision
i. The Test for Summary Judgment
[19] In Re Trotter Estate, 2014 ONCA 841, Benotto J.A. summarized the principles set forth in Hryniak, supra. At para. 72, she wrote:
In Hryniak, the Supreme Court established a two-step process that motion judges must follow on a summary judgment motion. First, a motion judge must determine – based only on the evidence before her – whether there is a genuine issue requiring a trial. If not, then summary judgment should be granted. There will be no genuine issue requiring a trial when the written record (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.
[20] If a genuine issue requiring a trial emerges during the first stage, the motion judge may embark on another. Benotto J.A. explained at para. 75:
At this point, a motion judge may, at her discretion, move to step two of Hryniak, where she must consider whether a trial can be avoided by using the powers granted under rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate credibility, draw reasonable inferences and call oral evidence. These discretionary powers are presumptively available unless it is in the interest of just to exercise them only at a trial.
[21] Dispositive findings should only be made if justice can be done despite the absence of a trial. Writing on behalf of the Supreme Court in Hryniak, supra, Karakatsanis J. explained at para. 4:
…a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditions and less expensive means to achieve a just result than going to trial.
[22] With those principles in mind, I turn to the issues raised on this motion.
ii. The Credit Memo
[23] As months passed without payment of the outstanding balance, Colleen Reeves of AMDI expressed increasing frustration. Her December 19, 2011 e-mail said in part:
We need to clean up this project and get payment…There is $108,000 owing…When can this project be cleaned up? We spoke sometime ago about getting some resolution, but no payment has been received. It is unfair to many of our employees as there [sic] premium time has still not been paid to them. If required I can call the OLG directly to get action…
[24] Provincial’s Project Accountant, Marco Schipani, responded later that day. Mr. Schipani said:
To reconfirm our conversation a few weeks back, Provincial has released payment to AMDI for all premium time invoiced on the Brantford Casino Project. Future payments regarding this account are now headed by Henry Joubran as Provincial…has sought legal counsel to resolve all outstanding balances. The balance owed to AMDI will be remitted upon receipt of payment from the OLG and the outstanding credit note from AMDI, in the amount of $65,000 before applicable taxes.
[25] However, Mr. Schipani’s e-mail does not explain why the Credit Memo was to be issued.
[26] Mr. Corrigan explained AMDI’s position with respect to its genesis. At para. 9 of the supplementary affidavit he said in part:
The credit memo was issued by AMDI at [Provincial’s] request. Gina Dee had indicated to me that [Provincial] had suffered a loss on the project and sought some financial assistance from AMDI. [Provincial] requested that AMDI reduce its outstanding balance by approximately 50% to help [Provincial] out. I agreed to help out a long-term customer (for whom AMDI was working a number of different projects) and agreed to reduce the outstanding amount by 50% so long as payment was made immediately. AMDI had no other reason to issue the credit note other than to help [Provincial], with whom…we had a very good, long standing business relationship. [Provincial] was to pay AMDI the remaining balance owing…upon receipt of that credit memo…When [Provincial] did not pay the remaining balance despite the credit memo, AMDI reversed the credit.
[27] Ms. Dee described the events leading up to the issuance of the Credit Memo quite differently. At para. 10 of her affidavit she deposed:
At the end of the OLG Casino Project…Corrigan…and I went through a reconciliation and analysis of the hours and costs being claimed by AMDI as [Provincial] took the position that the amounts claimed were exaggerated. Corrigan and I reached an agreement that given the amounts AMDI had invoiced to [Provincial] for their work on the OLG Casino Project, AMDI would issue a credit…in the amount of $65,298.24, including tax.
[28] Her position softened on cross-examination. At that time she explained that Provincial had made estimating and site errors that resulted in the costs of the OLG Casino Project far exceeding the price quoted to Govan Brown. At question 135, Ms. Dee explained the consequence:
…Govan Brown would pay what the value of the lump sum contract to Provincial was. And if our costs within that lump sum went over they don’t care, they wouldn’t have paid for that.
[29] Ms. Dee said that AMDI and Provincial had a long-standing and positive business relationship. The Credit Memo was issued by AMDI for two reasons: first, to help ease the financial burden that Provincial would otherwise bear as a result of the cost overruns and second, to help facilitate payment by Govan Brown.
[30] In fact, Provincial was entirely satisfied with AMDI’s work on the OLG Casino Project. In response to question 179, Ms. Dee said:
Emphatically I have to say that I think [AMDI] did a great job. Noel [Corrigan] was a great partner to me, that credit memo…was specifically for the purpose of helping out my overage on my budget.
[31] Ms. Dee testified that Provincial’s accounting records showed a debt owing to AMDI of approximately $61,000 in relation to the OLG Casino Project.[^5] She did not believe that the Credit Memo was conditional on payment of that sum within a certain period of time.
[32] Ms. Dee acknowledged that payment issues with Govan Brown were eventually settled and that Provincial received all payments due under the subcontract it had signed. However, she could not provide particulars.
[33] According to a February 17, 2015 letter answering undertakings, Govan Brown made payments to Provincial on January 25 and February 24, 2012 and April 1, 2014. Provincial took the position that the portion attributable to AMDI’s work was not received until the last instalment was obtained.[^6] Provincial alleges that it did not disburse monies to AMDI because issues with respect to the Imara Project had arisen by that time.
[34] The following appears in the description portion of the Credit Memo AMDI issued:
Revision to hours on site for installation. Reference Invoice # 3690 & 3722
[35] Those were the invoices AMDI had delivered dated May 5 and 30, 2011.
[36] I have not been provided with anything that suggests the Credit Memo was time limited or revocable. In cross-examination, Mr. Corrigan acknowledged that he had withdrawn the Credit Memo because no further payment had been received from Provincial after its issuance.
[37] Subject to the set-off issue addressed below, I would grant AMDI’s motion for summary judgment to the extent of the $61,696.31 Provincial acknowledges owing.
[38] I am unable to determine whether the Credit Memo is still operative based on the affidavits filed and cross-examinations conducted so far. While AMDI has not yet received the partial payment it agreed to accept, Provincial may have relied on the Credit Memo in its dealings with Govan Brown.
[39] During her cross-examination, Ms. Dee could not and in its answers to undertakings Provincial did not provide sufficient answers for me to make dispositive findings. Documents underlying payments made by Govan Brown in 2012 and 2014 should have been but were not provided. I cannot tell if Govan Brown’s payments were, in fact, restricted to the contract amount or not. If that had been demonstrated, I would have concluded that AMDI was bound by the Credit Memo. That result may not have followed if Govan Brown paid an additional amount that reflected AMDI’s actual, rather than reduced, billings.
[40] On this record, I conclude that the Credit Memo’s continued operation is a genuine issue requiring a trial.[^7]
iii. The Set-Off Issue
[41] Despite Ms. Dee’s glowing endorsement of AMDI’s work on the OLG Casino Project, Provincial maintains that it is not obligated to pay the amount it admits is due.
[42] The amended statement of defence[^8] alleges that Provincial has sustained losses, damages and/or costs in relation to the Four Seasons, Bow and Imara projects and claims a right of set-off pursuant to s. 12 of the CLA.
[43] Ms. Dee’s affidavit provides no basis for a claim in relation to the Four Seasons and Bow projects despite Provincial’s obligation to put its best foot forward.[^9] Insofar as those projects are concerned, the set-off claim is baseless and does not raise a genuine issue for trial.
[44] Provincial’s entire focus was on the Imara Project.
[45] Part II of the CLA bears the heading “Trust Provisions”. Sections 8 and 12 are relevant to Provincial’s pleading.
[46] Section 8 provides:
8(1) All amounts,
(a) owing to a contractor or subcontractor…; or
(b) received by a contractor or subcontractor
on account of the contract or subcontract price of an improvement constitute a trust fund for the benefit of the subcontractors…who have supplied services or materials to the improvement who are owed amounts by the contractor or subcontractor.
(2) The contractor or subcontractor is the trustee of the trust fund created by subsection (1) and the contractor or subcontractor shall not appropriate or convert any part of the fund to the contractor’s or subcontractor’s own use or to any use inconsistent with the trust until all subcontractors…are paid all amounts related to the improvement owed to them by the contractor or subcontractor.
[47] Pausing here, amounts paid by Govan Brown to Provincial on account of the OLG Casino Project are to be held in trust by Provincial for the benefit of those who supplied services or materials to that project and who remain unpaid. That would include AMDI.
[48] However, the trust obligation is not absolute. Section 12 of the CLA provides as follows:
Subject to Part IV, a trustee may, without being in breach of trust, retain from trust funds an amount that, as between the trustee and the person the trustee is liable to pay under the…subcontract related to an improvement, is equal to the balance in the trustee’s favour of all outstanding debts, claims or damages, whether or not related to the improvement.[^10]
[49] Ms. Dee acknowledged that eventually Provincial was fully paid by Govan Brown. According to s. 8 of the CLA, Provincial held the amount necessary to pay AMDI for the unpaid work it had performed on the OLG Casino Project in trust. Provincial would be in breach of trust if it used AMDI’s portion of the fund for another purpose unless it had a right of set-off whether related to the OLG Casino Project or not.
[50] No cases were cited by the parties which have considered the scope of the right of set-off created by s. 12 of the CLA.[^11] Its wording is similar to s. 17(3) of the CLA which provides that rights of set-off may also be taken into account when determining the amount of a lien. That subsection has been judicially considered.
[51] The rights of set-off recognized by ss. 12 and 17(3) of the CLA are wide-ranging: McGuinness, Construction Lien Remedies in Ontario, 2nd ed., at pp. 218-219. They create statutory rights of set-off “broader than equitable set-off”: C & A Steel (1983) Ltd. v. Tesc Contracting Company Ltd. et al. (1998), 39 O.R. (3d) 155 (Gen. Div.) (“C & A Steel”).
[52] However, this action was not commenced pursuant to the CLA. AMDI simply seeks payment of the $126,994.55 alleged to be due on account of invoices it rendered in respect of the final three phases of the OLG Casino Project and the holdbacks.
[53] Alternatively, AMDI seeks damages in the same amount for breach of contract, unjust enrichment and/or payment on a quantum meruit or quantum valebant basis.
[54] In C & A Steel, supra, it was appropriate to apply the statutory right of set-off the CLA created. Sharpe J. (as he then was) explained why:
…the plaintiff has claimed the benefit of the construction lien statute and has obtained security for its claim. Having availed itself of the benefits of the Act, I fail to see how the plaintiff can claim to deprive the defendant of the benefits of the statute including the broad set-off provision of s. 17(3).
[55] This case is a different one. AMDI has not claimed the benefit of the CLA.
[56] AMDI does not assert a lien. It does not allege the existence, let alone breach, of that statute’s trust provisions. Section 12 of the CLA is not engaged. Nonetheless, I will address Provincial’s set-off defence because legal or equitable set-off can arise independent of the CLA.
[57] Section 111 of the Courts of Justice Act, R.S.O. 1990, c. C.43, codifies principles relating to legal set-off. In an action for the payment of a debt, the defendant may claim a right to set off “a debt owed by the plaintiff” against the plaintiff’s claim.
[58] That section does not assist Provincial. Provincial claims that it suffered damages as a result of AMDI’s abandonment of the Imara Project. Provincial’s claims are unliquidated and, as yet, unproven. Its claims do not constitute a “debt”: Telford v. Holt, [1987] 2 S.C.R. 193; Marketing Products Inc. v. 1254719 Ontario Ltd. (2011), 11 C.P.C. (5th) 201 (Ont. C.A.); Algoma Steel Inc. v. Union Gas Ltd. (2003), 63 O.R. (3d) 78 (C.A.) at paras. 23-24.
[59] Equitable set-off arises from decisional law. In some respects it is more expansive than legal set-off. The reach of equitable set-off extends to unliquidated claims.
[60] However, the competing obligations must be sufficiently connected that it would be unjust to permit one party to enforce payment without taking into account the commitment flowing the other way: Government of Newfoundland v. Newfoundland Railway Co. (1888), 13 App. Cas. 199 (P.C.); Coba Industries Ltd. v. Millie’s Holdings (Canada) Ltd. (1985), 20 D.L.R. (4th) 689 (B.C.C.A.) at 696-697; Telford v. Holt, supra at 398-399; Federal Commerce & Navigation Co. v. Molena Alpha Inc., [1978] 3 All E.R. 1066 (Q.B.) at 1078; Algoma Steel Inc. v. Union Gas Ltd., supra at paras. 26-32.
[61] C & A Steel, supra provides a useful example. While the claim by the plaintiff arose under one construction contract and the alleged set-off under others, Sharpe J. concluded that equitable set-off applied. He wrote:
On the evidence before me, it appears that both parties have in effect treated their respective obligations and claims as a running account and withheld payments acknowledged to be owing because of unresolved competing claims. As noted in McGuinness, supra, at p. 222, there is "an established practice" in the construction trade to treat claims in this manner. In my view, that constitutes grounds for finding that the defendant is entitled to avoid judgment at this stage on the basis of equitable set-off.
[62] Hennessy J. distinguished that fact situation from the one before her in Total Electrical v. Collège Boréal, 2011 ONSC 4586 (S.C.J.) in part because:
…there is no evidence from the defendant on the relationship between the parties that might suggest that they had a practice or understanding that there was a "running account" between them with respect to different projects. From the plaintiff, the evidence was clearly and emphatically to the contrary.[^12]
[63] In my view, equitable set-off does not arise on the facts of this case. Provincial and AMDI had a multi-year relationship. There is nothing in the evidence which suggests that payment on one project was tied to performance on another at any other time.
[64] The OLG Casino Project was entirely separate from the Imara Project. They were undertaken at different times, in different cities and for different owners. Provincial’s accounting system tracked each job separately and “kept the funds for each of the projects segregated.”[^13]
[65] According to the Dee affidavit, Provincial did not enter into an agreement with AMDI in respect of the Imara Project until September, 2011. AMDI had completed its work on the OLG Casino Project well before then. In fact, except for the holdbacks, installation services had been fully invoiced by June 24, 2011.
[66] As noted earlier, on December 19, 2011 Mr. Schipani advised AMDI by e-mail that:
The balance owing to AMDI will be remitted upon receipt from the OLG of the outstanding credit note from AMDI in the amount of $65,000 before applicable taxes.
[67] The promise was unconditional. There was no reference to any other job. The Imara Project was then underway.
[68] The Credit Memo was issued January 31, 2012. Govan Brown made a payment to Provincial the following month. Given Mr. Schipani’s promise, it is not at all clear to me why AMDI was not paid from that remittance.
[69] Provincial maintains that ongoing litigation with Govan Brown postponed the final OLG Casino Project payment until April, 2014. By then, issues had arisen with respect to the Imara Project.
[70] The Imara construction lien actions were commenced by AMDI in Toronto in January, 2014. Provincial is one of three defendants in those proceedings.[^14] As on this motion, Provincial alleges that AMDI abandoned the Imara Project and that damages have been sustained. No steps have been taken by Provincial to join those actions with this one.
[71] The availability of equitable set-off is not a genuine issue requiring a trial. The Imara and OLG Casino Projects are unrelated.
[72] In Federal Commerce & Navigation Co. v. Molena Alpha Inc., supra, Lord Denning outlined the approach to be taken when analyzing the issue of equitable set-off. At p. 1078, he wrote:
We have to ask ourselves: what should we do now so as to ensure fair dealing between the parties? ...It is only cross-claims that arise out of the same transaction or are closely connected with it. And it is only cross-claims which go directly to impeach the plaintiff’s demands, that is, so closely connected with his demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross-claim.
[73] That test was adopted by the Court of Appeal in Algoma Steel Inc. v. Union Gas Ltd., supra at para. 29 and cited with approval by the Supreme Court of Canada in Telford v. Holt, supra at p. 400.
[74] That question posed in Federal Commerce can be answered on the record before me. It would not be manifestly unjust to allow AMDI to recover payment on the OLG Casino Project without taking into account Provincial’s claims relating to the Imara Project.[^15] To the contrary, it is just to require Provincial to fulfill, at long last, the promise it made in December, 2011.
[75] The issues raised in the Imara construction lien actions do not influence the result in this proceeding.
C. Disposition
[76] For the reasons given, AMDI’s motion for summary judgment is granted in part. Provincial shall pay to AMDI the principal sum of $61,696.31.
[77] AMDI claims prejudgment interest at the rate of eighteen per cent (18%) per year as set forth in the invoices that remain unpaid. Alternatively, AMDI seeks prejudgment interest in accordance with the Courts of Justice Act. No evidence was introduced by AMDI that suggests interest was actually charged or paid at the invoice rate. Consequently, Provincial shall pay prejudgment interest at the rate of 1.3% per year commencing March 1, 2012 in accordance with s. 128 of the Courts of Justice Act.
[78] Written submissions with respect to costs may be provided by no later than August 28, 2015 in the case of AMDI and by no later than September 18, 2015 in the case of Provincial. Those submissions are not to exceed five (5) pages in length. AMDI may deliver a reply of two pages or less by no later than September 28, 2015.
[79] The sole issue that is to be tried is whether the Credit Memo continues to be operative.
[80] In order to facilitate the giving of directions pursuant to rule 20.05(2), the parties shall make arrangements for a thirty minute attendance before me at 9 a.m. on a date to be set by the trial coordinator. If the trial coordinator is able to accommodate the request, the attendance is to occur by no later than October 16, 2015.
Grace J.
Released: August 5, 2015
CITATION: Architectural Millwork v. Provincial Store, 2015 ONSC 4913
COURT FILE NO.: 831/13
DATE: 20150805
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ARCHITECTURAL MILLWORK & DOOR INSTALLATIONS INC.
Plaintiff
- and –
PROVINCIAL STORE FIXTURES LTD.
Defendant
REASONS FOR DECISION
Grace J.
Released: August 5, 2015
[^1]: AMDI referred to it as the “Brantford Casino project”. [^2]: $133,415.22 is the amount claimed in the statement of claim and was the amount set forth in an affidavit of Noel Corrigan sworn September 13, 2013. However, the amount was corrected in a supplementary affidavit of Mr. Corrigan sworn January 12, 2015. [^3]: They were Govan Brown Constructors Inc. and Govan Brown Management Inc. [^4]: I cannot rationalise the $25,341.40 amount appearing in paragraph 32 of the Dee affidavit. Exhibit “N” is easier to follow. It includes the numbers appearing in paragraphs 29 and 31 of the Dee affidavit. The aggregate installation costs it shows total $1,635,937.39 comprised of $686,769.39 paid to AMDI prior to the alleged abandonment and $949,168 paid or to be paid to third parties to complete same. It alleges that the price of the AMDI contract was $1,330,642.52. if so, the alleged loss is the $305,294.87 figure I have utilized. [^5]: The actual amount would be $61,696.31. [^6]: In para. 2 of that letter, Provincial’s counsel initially said that $61,021.11 would be due to AMDI but for the set-off issues. In the next sentence the figure of $60,021.11 was used. In fact, Ms. Dee took no issue with the final invoice issued by AMDI. The correct number is $61,696.31. [^7]: The parties did not address section 16 of the Mercantile Law Amendment Act, R.S.O. 1990, c. M.10. It provides as follows: Part performance of an obligation either before or after a breach thereof when expressly accepted by the creditor in satisfaction or rendered in pursuance of an agreement for that purpose, though without any new consideration, shall be held to extinguish the obligation. [^8]: A counterclaim has not been asserted. [^9]: For recent confirmation of that principle see Terradyne Construction Management Ltd. v. 6832458 Canada Inc., 2015 ONSC 1495 (Div. Ct.) at para. 5. [^10]: Part IV of the CLA contains provisions dealing with holdbacks. [^11]: AMDI did rely on Arborform Countertops Inc. v. Stellato (1996), 29 O.R. (3d) 129 (Gen. Div.). It considered s. 12 of the CLA and held that the section allows a trustee to retain but not expend the amount of the alleged set-off. [^12]: This excerpt is found at para. 41. The motion judge was also dissatisfied with the evidentiary record compiled by the defendant. [^13]: This excerpt is drawn from Provincial’s answers to undertakings dated February 17, 2015. [^14]: The others are Aga Khan Foundation Canada and Foundation Aga Khan Canada. [^15]: Equitable set-off has been found to be an issue requiring a trial in several cases. They include Siemens Electric Limited v. Unident Ltd., [1999] O.J. No. 575 (C.A.) and Fraser v. Holman Exhibits Limited (Ont. S.C.J.), leave to appeal denied [2008] 60704 (Ont. Div. Ct.).```