Court File and Parties

BARRIE COURT FILE NO.: CV-16-0090 DATE: 20160915 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Best Way Stone Limited, Plaintiff AND: Lansbridge Construction Inc., Cristian Mugurel Pruna and Equitable Bank, Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: W. Ribeiro, Counsel for the Plaintiff S. Chagpar, Counsel for the Moving Party, Pruna No one appearing for the Defendants, Lansbridge and Equitable Bank

HEARD: September 15, 2016

Endorsement

[1] The moving party, Pruna, by way of summary judgment, seeks orders dismissing the claim against him, discharging the construction lien registered against his property, and vacating the certificate of action.

[2] At the conclusion of argument, this Court declined to grant the order sought and indicated that the motion would be dismissed with reasons to follow.

[3] The evidence filed discloses that there are multiple issues requiring a trial in this case. First and foremost, the moving party failed to provide evidence as to who supplied and/or installed the paving stone currently on his driveway, while denying any liability to the plaintiff. At the same time, his counsel agreed that it would be information that might be of assistance to the Court at trial. This was a particularly problematic gap in the evidence given the significant amount of evidence filed by the plaintiff to refute Pruna’s allegation that he has never received material from the plaintiff or the co-defendant, Lansbridge.

[4] The evidence filed by the plaintiff, including invoices and delivery slips, suggests that there may have been an ongoing commercial relationship between the plaintiff and Lansbridge at the material time. That relationship seems to have involved an individual by the name of Phil Iannello, who may have been an agent or employee of Lansbridge as opposed to the “rogue contractor” alleged by Pruna. There is evidence suggesting that the plaintiff and Iannello had direct dealings with one another in regard to the stone material in question. Further, there are text message exchanges between Iannello and Pruna which raise further triable issues about the connection between Pruna and Lansbridge. There is evidence that Lansbridge is the only supplier in the world of the particular stone installed on Pruna’s driveway, shown in pictures filed by the plaintiff. Pruna has not disputed any of the evidence filed by the plaintiff in response to his motion.

[5] In short, it is not at all clear that Pruna’s property has not been improved by the supply of the material that is the subject matter of this litigation. Whether it has been is a triable issue. The nature of the contractual relationship between Pruna and Lansbridge is a triable issue. The amount of the holdback for which Pruna may be liable is a triable issue. And finally, the identification of the party having contractual liability to the plaintiff remains a triable issue.

[6] The court was also asked to consider whether the need for a trial could be avoided by the court employing the powers granted under Rules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I am not persuaded that there are any methods to be employed in this case to create a more efficient, cost-effective process. It is not a complicated fact situation and, if presented efficiently, should take no more than two or three days of trial time. I have urged counsel to create as streamlined a case as possible by using Requests to Admit and providing an Agreed Statement of Fact if possible. However it is clear that credibility of the witnesses will be a primary issue, and therefore oral evidence will be preferable. This is not a case where the court’s discretionary powers can be employed in a way that will significantly reduce or simplify trial procedures, and it is one, given the positions being taken by the parties, for which the procedural protections of a full trial are necessary. Accordingly, summary judgment will not provide a fair and just adjudication in this case.

[7] After receiving submissions on costs, and reviewing the plaintiff’s offer to settle dated August 29, 2016, I have determined that it is a Rule 49 offer of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which, had it been accepted, would have saved both parties the costs of preparing facta and arguing the motion. Accordingly, the plaintiff will have its costs on a partial indemnity basis to the date of the offer, and on a substantial indemnity basis from the date of the offer. Those costs, inclusive of disbursements and HST, total $11,474. This sum will have been within the expectation of Pruna, whose own counsel delivered a Bill of Costs for the action on a partial recovery basis in the amount of $10,767. Although this amount also included preliminary work leading up to drafting and serving a statement of defence, that work is a small portion of the total hours docketed by Pruna’s counsel prior to the preparation of the motion for summary judgment.

[8] Accordingly, this Court orders that the motion is dismissed, and the moving party Pruna shall pay costs to the plaintiff fixed in the amount of $11,474, payable in 30 days.

HEALEY J. Date: September 15, 2016