COURT FILE NO.: CV-15-524073
DATE: 20151203
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF
THE CONSTRUCTION LIEN ACT,
R.S.O. 1990, c. C.30 as amended
BETWEEN:
ROYAL OAK RAILING & STAIR LTD.
Plaintiff
– and –
MYHAVEN HOMES LTD., JULIA ELIZABETH McDOWELL and STEPHEN CRAIG FORCHON
Defendants
Mark Wainberg for the Plaintiff
Paul Hancock for the Defendant MyHaven Homes Ltd.
Damon Stoddard for the Defendants Julia Elizabeth McDowell and Stephen Craig Forchon
HEARD: November 30, 2015
PERELL, J.
REASONS FOR DECISION
[1] Julia Elizabeth McDowell and Stephen Craig Forchon contracted with MyHaven Homes Ltd. to renovate their home. By subcontract, MyHaven Homes retained Royal Oak Railing & Stair Ltd. to build the interior stairs. Royal Oak was not paid, and in an action under the Construction Lien Act, R.S.O. 1990, c. C.30, it brings a motion for summary judgment against Ms. McDowell, Mr. Forchon, and MyHaven Homes for $3,706.40 plus pre-judgment interest.
[2] Ms. McDowell and Mr. Forchon submit that leave to seek summary judgment should not be granted because of the summary nature of the Construction Lien Act proceedings. If leave is granted, they submit that Royal Oak is not entitled to judgment because it failed to perfect its lien in accordance with the Act.
[3] At the hearing of the motion, Ms. McDowell and Mr. Forchon conceded that if Royal Oak’s construction lien was timely, i.e., if it was proven that it performed work on December 30, 2014 and registered a construction lien by February 13, 2015, then Royal Oak was entitled to a judgment for $3,706.40 less $187.50 for defective workmanship.
[4] MyHaven Homes takes the position that if Royal Oak's lien is found to be valid, it should be paid from the owner’s holdback. At the hearing of the motion, MyHaven Homes conceded that it had no defence to Royal Oak’s claim in contract for $3,706.40 other than a claim for a setoff, which it did not know until the motion, for $187.50. MyHaven Homes submits that regardless of the outcome of the motion, it should not be liable for costs because it has acted reasonably in expecting that the subcontractor would be paid as a part of the construction lien proceedings.
[5] Although the point was not conceded, there was little opposition to the court granting leave to hear this summary judgment motion.
[6] Section 67(2) of the Construction Lien Act requires the leave of the court for a motion for summary judgment, and the court shall grant leave if the motion is either “necessary” or will “expedite the resolution of the issues in dispute”. Thus, while motions for summary judgment are available in a construction lien action, the moving party confronts a preliminary hurdle of persuading the court that the motion is necessary or would expedite the resolution of the issues in dispute. See: Brantford Engineering and Construction Limited v. 1562772 Ontario Inc., [2007] O.J. No. 1636 (S.C.J.); Michaels Engineering Consultants Canada Inc. v. 961111 Ontario Ltd. (1996), 1996 11806 (ON SC), 29 O.R. (3d) 273 (Div. Ct.); Bradhill Masonry v. BWK Construction Company Limited, 2011 ONSC 6230; Kiewswetter v. Traugott, 2014 ONSC 1397. I am satisfied that this is an appropriate case to grant leave, and I shall decide the summary judgment motion on its merits.
[7] For the reasons that follow, I grant Royal Oak judgment of $3,706.40 plus pre-judgment interest jointly and severally against all the Defendants. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Royal Oak’s submissions within 20 days of the release of these Reasons for Decision, followed by the Defendants’ submissions within a further 20 days.
[8] The factual background is that Ms. McDowell and Mr. Forchon own a semi-detached house at 48 Brunswick Avenue in Toronto, Ontario, and on May 9, 2014, they entered into a construction contract with MyHaven Homes, a general contractor, to renovate the house for a contract price of $698,381.14, inclusive of HST.
[9] On November 25, 2014, pursuant to a written proposal and two subsequent purchase orders, MyHaven Homes retained Royal Oak to build the interior stairs for the fixed price of $7,412.80, inclusive of HST. In turn, Royal Oak retained Kevin MacGregor, a sub-subcontractor, who completed the work between November 26, 2014 and December 30, 2014.
[10] MyHaven Homes did not dispute that Mr. MacGregor worked on the property on December 30, 2014. MyHaven Homes had received a combined worksheet and invoice from Mr. MacGregor about the work he performed on the Brunswick Avenue property and several other properties. The worksheet and invoice indicated that Mr. MacGregor was working at the 48 Brunswick Avenue property on December 30, 2014.
[11] It is Ms. McDowell and Mr. Forchon who dispute that work was performed at their property on December 30, 2014. They, however, have absolutely no evidence to prove that work was not performed that day, but they submit that the onus is on Royal Oak to prove that Mr. MacGregor was working on the property on December 30th.
[12] Ms. McDowell and Mr. Forchon submit that Royal Oak did not put its best foot forward in bringing this summary judgment motion and ought to have called Mr. MacGregor as a witness rather than relying on the documents Mr. MacGregor delivered to Royal Oak and that were tendered into evidence by it.
[13] As it happens, Mr. MacGregor no longer resides in Ontario and now lives in British Columbia, but in my view it matters not, because the uncontradicted documentary evidence submitted by Royal Oak is sufficient to make a finding of fact that work was performed on the property on December 30, 2014.
[14] Rule 20.02(1), which addresses evidence on a motion for summary judgment, states:
20.02(1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided for in rule 39.01(4), but, on the hearing of the motion, the court, may if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
[15] In the immediate case, it is not appropriate to draw an adverse inference from the failure of Mr. MacGregor to testify. His worksheet was prepared before there was any issue about the registration of a lien and there would be no reason for him to falsify the dates and times that he did work. Royal Oak’s documentary evidence is reliable, and the worksheet and invoice would appear to be admissible as a business record or as a common law exception to the hearsay rule, which exception, is, in any event, not necessary, because rule 20.02(1) permits evidence on information and belief. See Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., Ltd., 2009 65376 (Ont. S.C.J.).
[16] On December 30, 2014, Royal Oak invoiced MyHaven Homes for the agreed price of $6,560.00 plus HST. Of that invoice, $3,706.40 has not been paid.
[17] In January 2015, Ms. McDowell and Mr. Forchon told MyHaven Homes that the brackets securing the handrail for the steps were not spaced as they wanted. MyHaven Homes offered to adjust the brackets.
[18] However, on January 19, 2015, Ms. McDowell and Mr. Forchon terminated MyHaven Homes’ construction contract, and they refused to allow it to return to the job site. Neither MyHaven Homes nor Royal Oak could do anything to adjust the brackets for the railing on the steps.
[19] On February 13, 2015, Royal Oak registered a construction lien against the title to the property in the Land Registry Office at Toronto as Instrument No. AT3811047. For the reasons expressed above, I find this lien claim to be timely.
[20] In February or March, 2015, without advising Royal Oak or MyHaven Homes, Ms. McDowell and Mr. Forchon hired Jay Taylor to adjust the placement of the brackets at a cost of $187.50. I find as a fact that this expenditure of $187.50 was not incurred to repair defective workmanship but was made as an aesthetic choice of Ms. McDowell and Mr. Forchon.
[21] In the result, Royal Oak has a proven claim in contract against MyHaven Homes for $3,706.40 plus pre-judgment interest and a joint and several claim under the Construction Lien Act against Ms. McDowell and Mr. Forchon for $3,706.40 plus pre-judgment interest.
[22] Judgment accordingly.
Perell, J.
Released: December 3, 2015
COURT FILE NO.: CV-15-524073
DATE: 20151203
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF
THE CONSTRUCTION LIEN ACT,
R.S.O. 1990, c. C.30 as amended
BETWEEN:
ROYAL OAK RAILING & STAIR LTD.
Plaintiff
– and –
MYHAVEN HOMES LTD., JULIA ELIZABETH McDOWELL and STEPHEN CRAIG FORCHON
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 3, 2015