Court File and Parties

COURT FILE NO.: 5234/06 DATE: 2016/04/11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ravenda Homes Ltd. Plaintiff AND: 1372708 Ontario Inc. and Vaughn Gibbons, Defendants

AND BETWEEN

1372708 Ontario Inc. Plaintiff by Counterclaim AND Ravenda Homes Ltd. and John Ravenda Defendants by Counterclaim

AND Court File 5326-06

IN THE MATTER OF THE CONSTRUCTION LIEN ACT, R.S.O. 1990, c. C30

Ravenda Homes Ltd. Plaintiff AND 137 Ontario Inc. Defendant

BEFORE: Turnbull, J.

COUNSEL: Robert Harason, Counsel, for 1372708 Ontario Inc and Vaughan Gibbons, Moving Parties Ryan Breedon, Counsel, for Ravenda Homes Ltd. and John Ravenda, Responding Parties

Addendum to Endorsement

[1] I rendered a ruling with respect to a motion for Summary Judgment on December 24, 2016. Thereafter, counsel wrote to ask if they could send written submissions with respect to some corrections which they felt were needed to the endorsement. I agreed and counsel worked out a schedule for their submissions, the last of which were received April 8, 2016.

[2] In paragraph 4, the name of the subdivision should be Crystal Ridge Landing and not Crystal Woods. Counsel are agreed on that issue. Accordingly, the endorsement is amended.

[3] Ravenda opposes the process followed by 137 in seeking to correct errors and/or omissions in the endorsement released by the court. It is submitted that 137’s suggested amendments constitute an attempt to re-litigate the motions. It submits that the changes sought constitute substantive requests for relief which should only be considered through a formal motion or the appeal process.

[4] I reject those submissions. Until the order which is the subject matter of the motion is signed, issued and entered, the court can amend or alter its ruling to correct any errors or oversights. Montague et al. v. Bank of Nova Scotia (2004), 69 O.R. (3d) 87 (C.A.).

[5] I will review each of the requests made by 137 and rule on each request.

Amendment #1:

[6] Mr. Harason has commented in the fourth paragraph of his letter of February 22, 2016 that paragraph 160 of the endorsement is erroneous in that it indicates his client was abandoning the entirety of its claim in the counterclaim in the Model Homes Action. I have reviewed my detailed notes made during submissions of counsel and agree that I have misunderstood his submission. The note I made is as follows:

They are only seeking sum judgment for the property and water taxes in the sum of $70,000 and not aggravated dams, pun dams, or dams of $5,000,000 as pleaded in para 40.

[7] As I wrote my decision, I interpreted that note to mean that 137 was not pursuing its damage claims and hence, I dismissed the claims.

[8] Clearly, Mr. Harason meant that his client was not pursuing the damage claims on the summary judgment motion. Hence, paragraph 160 should be deleted from the endorsement and 137 shall be permitted to pursue those claims except the claim for property taxes which was dismissed. This does not prejudice Ravenda in any way as it will have full opportunity to present evidence to rebut the claims in the ordinary course of this litigation.

Amendment #2:

[9] Mr. Harason noted that in addition to the amount incurred by 137 to post letters of credit to vacate the liens, 137 claimed the legal costs incurred to in order to obtain the order to vacate the Certificate of Pending Litigation upon posting of the necessary security to do so. The affidavit of Karen Louzado sworn July 29, 2015 [1] was filed in support of its claim for legal costs incurred in the sum of $2,393.66 in order to obtain the orders to vacate both the CPL and the model homes lien. On review of my notes, it is clear that information was before the court on the argument of the motion and I overlooked taking it into consideration at the time of rendering the decision.

[10] 137 was awarded the entire cost of posting the letter of credit to vacate the CPL and part of the cost of posting the letter of credit to vacate the model homes lien. Applying the same reasoning with respect to the legal costs, I agree with Mr. Harason’s submission that only one half of the $2,393.66 should be added to the amount payable by Ravenda to 137 on account of its damages suffered due to the registration of the CPL. Hence, the amount of $1,196.83 should be added to the amount payable by Ravenda to 137 on account of its damages suffered due to the registration of the CPL. The endorsement shall be amended to delete paragraph 165 and replace it with the following:

[165] 137 shall have judgment for the sum of $56,907.50 for overpayment of annual fees for the letters of credit and the sum of $1,196.83 for the legal costs incurred to vacate the CPL. A party claiming an interest in the lands of another by registering a lien or CPL knows or should know that if such an instrument must be vacated from title by posting security with the court, that party may be responsible for the costs incurred by the landowner if the claims are not substantiated or the damages claimed are proven to be excessive.

The endorsement shall be further amended by deleting paragraph 189(b) and replacing it with the following:

b. The counterclaim of 137 is allowed and judgment shall issue in the sum of $58,104.33 for the costs incurred to post letters of credit in both this action and in the construction lien action and for the legal fees incurred to vacate the CPL.

Amendment #3:

[11] The court found at paragraph 168 of the Endorsement that 137 and Ravenda had agreed that Ravenda would be responsible for the utility costs, sewer and water charges and the cost of maintaining the [model] homes until they were sold. I neglected to add the cost of those items to the final order of the court found at paragraph 189 (c) of the Endorsement. Hence, paragraph 189(c) should be deleted and replaced with the following:

c. The counterclaim of 137 is allowed with respect to the utility costs, sewer and water charges and maintenance, remediation and sale costs of the model homes, subject to satisfying the court of the reasonableness of the amounts claimed and its efforts at mitigation.

Amendment #4:

[12] As the counterclaim for the costs of posting the letters of credit and the legal costs in order to vacate the model homes lien and the CPL, for the utility costs, sewer and water charges and for the costs of maintenance, remediation and sale of the model homes was advanced in both the main action (Court File No. 5234/06) and in the model homes lien action (Court File No. 5326/06), Mr. Harason has asked that for consistency the counterclaim be allowed in both actions so that 137 suffers no prejudice due to the counterclaims being pleaded differently in each action with different claims being made at different dates. I concur and find that this is the intention of the Endorsement and orders made by the court. Hence, paragraph 190b of the Endorsement shall be deleted and replaced with the following:

b. The counterclaim of 137 is allowed with respect to the utility costs, sewer and water charges and maintenance, remediation and sale costs of the model homes, subject to satisfying the court of the reasonableness of the amounts claimed and its efforts at mitigation.

Amendment #5:

[13] Mr. Harason also raised issues with respect to findings made relative to paragraphs 70 and 71 of the Endorsement. Those were findings of fact after a review of the record and hearing submissions of counsel. I will not amend the endorsement as reflected in those paragraphs.

Turnbull, J. Date: April 11, 2016

[1] Motion Record of 137, Volume 5, Tab C.