Marcos Limited Building Design Consultants v. Lad, 2016 ONSC 7071
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Marcos Limited Building Design Consultants, Plaintiff
AND:
Ishver Lad, Sumitra Lad, Concentra Financial Services Association and Canadian Imperial Bank of Commerce, Defendants
BEFORE: Trimble J.
COUNSEL: Gregory Hemsworth, Counsel for the Plaintiff
Allison Speigel, Counsel for the Defendants, Ishver Lad and Sumitra Lad
HEARD: November 7, 2016
ENDORSEMENT
1The Defendants move to amend their February 5, 2013 Response to the Plaintiff’s December 30, 2012 Request to Admit. The action against the Defendants CIBC and Concentra has been dismissed.
2This action is on the list for the January, 2017 Brampton trial sittings.
3In early 2009, the Lads contracted with the Plaintiff to bespoke build their home in Caledon. They knew Manny Marcos, the principal of the Plaintiff. His wife and Mrs. Lad were friends. The children played together.
4The Plaintiff says that this action is simple: the Lads signed seven contracts to build the house which totaled over $1 million, of which almost $540,000 remains unpaid.
5The Lads say that the action is very complex. They say that they signed a contract to build the house for approximately $450,000. They say that seven later contracts were signed which were contracts for work subsumed in the main contract. They made payments during construction when Marcos asked for them, which were on account of the main contract, and not related to any of the alleged 7 other contracts.
6The Lads allege that Marcos falsified documents in order to complete a paper trail supporting its litigation position by either forging signatures, changing dates, or substituting pages documents after they were signed. Marcos is said to have lost original documents and that electronic documents have ‘disappeared’, both mysteriously.
7The issues in the action, in the main, are the existence and validity of the alleged main contract and seven other contracts, when payments were made and why. Other issues include what was paid, Mr. Marco’s actions in allegedly altering the signed documents or forging signatures, and representations made by Mr. Marcos.
Leave:
8Under s. 67(2) of the Construction Lien Act, R.S.O. 1990, c. C.30, no interlocutory steps may be brought without leave (except as specified by the Act). Leave may be granted where the applicant proves that the step is either necessary, or would expedite the resolution of the issues in dispute. Ricchetti J. held that the test for leave under s. 67(2) to bring an interlocutory step not provided for in the CLA is either a) that the step is necessary to advance the litigation between the parties or b) significant issues would likely be resolved by the motion, cost savings achieved, the trial shortened, or settlement promoted; see 4 Star Drywall (99) Ltd. V. Nanak Homes Inc., [2009] O.J. No. 1574, 82 C.L.R. (3d) 260 (S.C.J.), para 10 & 11.
9Leave should be granted. The Request to Admit and the Response deal with the fundamental issues in this action, including the existence and validity of the contracts that the Plaintiffs say exist but which the Defendants say are not valid, whether work was performed as alleged, and whether payments were made and in respect of which of the alleged contracts. Every time the Defendants lead evidence concerning one of the admissions they made in their Response, in all probability there will be an evidentiary fight. This is inefficient.
10Most of the Responses to the Plaintiff’s Request to Admit are ambiguous and imprecise. The fights that will arise over the admissions arise from this fact. Further, because of the ambiguity and imprecision, the parties are put to preparing for trial without a clear understanding of what the admissions are and which will stand. Resolving the ambiguity and imprecision at trial will mean that the trial will take on a different character depending on the decisions made, ad hoc, during the trial, concerning each individual response.
11It is necessary to resolve the ambiguity and imprecision before trial, where appropriate, thereby saving time at trial by clarifying the facts and issues in dispute.
Amending the Defendants’ Response to the Plaintiff’s Request to Admit:
(a) The Request to Admit
(i) The Purpose of a Request to Admit and Response.
12I attach as Schedule A to these reasons a chart prepared by Defendants’ counsel and approved by Plaintiffs’ counsel. It sets out in chart form the specific request to admit, the instruction from the Lads to their lawyer, the specific response in the Response to Request to Admit prepared and served by the Lads’ first lawyer, and the proposed amended response.
13The purpose of a Request to Admit and Response is to narrow issues at trial. The Request to Admit procedure is a mechanism whereby the parties may seek admissions as to facts and documents, such that issues are resolved, or the facts or documents need not be proved in the regular course at trial. The trial is expedited.
(ii) The Form of a Request to Admit and Response
14In keeping with the purpose of the Request to Admit procedure, Rule 51 says that the facts should be set out clearly, in consecutively numbered paragraphs. Holmstead and Watson says that this means that facts should be set out separately so that they are clear and can be admitted or denied without explanation or with a minimum of explanation. Argument and conclusion should not be incorporated into a “fact”.1 Master MacLeod said with respect to admissions (albeit in reference to admissions in pleadings under R. 51.05) “There is nothing in the Rule, however, which endorses the concept of an inadvertent admission. I adopt the definition of an admission as being an unambiguous deliberate concession to the opposing party: see Hughes v. Toronto-Dominion Bank, 2002 CarswellOnt 1544, [2002] O.J. No. 2145 (Master), paragraph 10.
15It only stands to reason that the Response should observe similar rules.
(iii) The Request to Admit and Response in this Case.
16In this case, neither the Request to Admit nor the Response achieves the objectives of the Rule. Neither party provided a Request or Response that was specific and free from ambiguity. In most cases neither the “fact” for which an admission was requested, nor the response was clear. Much is left to doubt and supposition.
17The Plaintiff’s Request to Admit asked the Defendants to admit 24 “facts”. The individual numbered “facts” to be admitted did not address a specific individual fact, each. Rather, the numbered “facts” in the Request were multi-sentence paragraphs containing many facts. For example, consider the first numbered “fact” for which an admission was requested, and the response:
Request:
“The plaintiff entered into a written agreement with the defendants Ishvar Lad and Sumitra Lad dated March 16, 2990, for the sum of $8,000.00 for, amongst other things, preparation of the design concept. The agreement was accepted in writing by those defendants April 26, 2009. The agreement is reproduced as production no. 12 from Schedule A to the Affidavit of Documents of the plaintiff. The plaintiff completed all of the contract work.”
Response:
“Admits signing the document but denies that all of the work was completed as they were never given a complete set of drawings.”
18The Request is prolix. It states many facts, and implies others: there was a contract, it was valid, it was binding, it was signed, there was consideration, there was an obligation to pay, and the contract was completed by the work being done. This “fact” is ambiguous because of implied facts it contained. Further, it requested the admission that the contract was for “amongst other things, preparation of the design concept”. In other words, there are other facts that are set out in the contract. Was an admission requested in respect of those other things in the contract?
19The Response, too, was ambiguous and imprecise. By this answer did the Defendants admit everything except that the work was not completed, or was the admission limited to the signing of the document. What about facts stated or implied in the paragraph? Are they admitted or is the specific admission of one fact an implicit denial of all other facts in the paragraph. The language used in the Response and the approach taken by Master MacLeod suggest the latter, however, unless a fact is denied, it is deemed to be admitted.
20A review of Schedule A indicates that most (if not all) of the original Responses are not responsive or only partially so, and in any event are ambiguous as to what is being admitted. The Request and Response do not meet the purpose of the Rule. Indeed, they frustrate the purpose. Where a Response to a Request to Admit is unresponsive, the Court can order that an amended Response be delivered: see Csak v. Csak (1993), 1993 16078 (ON SC), 15 C.P.C. (3d) 124 (Ont. Gen. Div.).
(iv) Parties Positions on this Motion
21The Defendants seek leave to amend their Response to the Plaintiff’s Request to Admit. They say that all of its proposed amendments make the previous responses more responsive by clarifying, amplifying and particularizing the admissions made. Those amendments should be allowed. The only amendment that might be seen as changing an admission is 4a on Schedule A, and the Defendant meets the three part test for withdrawal of an admission.
22The Plaintiff’s position is more difficult to discern. The Defendant says that the lawyer for the Plaintiff has known about the Defendants’ desire to amend and their position on the original Response since the end of 2013 or early 2014. Certainly, he knew about the Response on 26 August, 2015 when the draft amended Response and chart at Schedule A were served on him. According to the Defendants’ lawyer, her opponent has not responded to repeated phone calls, emails or letters to discuss the issue of amending the Response, some of which were put before me on October 24 in support of the Defendants’ claim to deny the Plaintiff’s requested adjournment. He has simply said that he did not agree with the proposed amendments.
23At the first hearing of this motion on October 24, the Plaintiff’s lawyer had not spoken to his opponent as to what specific amendments he contested. He did not gainsay the Defendants’ submission about his lack of response to the invitation to discuss the proposed amendments to the Response. I invited them to have the conversation between then and the return of the motion on November 7. That conversation did not occur. Accordingly, on November 7, I sent the lawyers into the hall for half an hour to review the 52 individual items in Schedule A and indicate if there were any amendments that the Plaintiff consented to or that could be grouped together and addressed as a group. This appears to be the first time that this conversation occurred, notwithstanding the Defendants’ claimed entreaties to have the discussion and my suggestion on October 24. Following the hallway discussion the Plaintiff said that the items on Schedule A with which he took issue as being the withdrawal of an admission were Facts 4a, 6 and 7e, and documents 1, 4 to 7 and two groups that related each to a common question, namely 9, 13, 15 – 17, 19, 20, and 21, 23, 25, 27, 29.
24The Defendant argued for an hour and twenty minutes. In the Plaintiff’s oral submissions, its position shifted again. After I tried, several times, to clarify the Plaintiff’s position, counsel said that at trial the Plaintiffs would not challenge any evidence led based on any admission in the Response, provided that the particular admission was later modified, changed, clarified, or particularized by subsequent evidence including that given at an examination for discovery, in an affidavit, or at a cross examination, provided that the evidence led at trial was consistent with the evidence on the point since the Response was served. Based on this statement, Plaintiff’s counsel said that facts 4a, 6 and 7e were still in issue in the motion as withdrawals of admissions, as were all proposed amendments to admissions as to authenticity, since the proposed amendments amount to a retraction of the admission of authenticity.
(v) Proposed Amendments to Response to “Facts”
25As indicated above, where a Response is unclear or unresponsive, the remedy (assuming no prejudice) is to permit an amendment: see Csak, supra.
26Where a party seeks to retract an admission, under Rules 51.05 and 2.03, the court must balance two interests: the party’s right to have an issued tried without limitation and the desire to have a matter proceed expediently and responsibly. Parties should not be allowed to blow hot and cold on a whim. Therefore, a party may withdraw an admission where a) the amendment raises a triable issue in respect to the truth of the admission, b) there is a reasonable explanation for the withdrawal, and c) the applicant can establish that the withdrawal will not result in non-compensable prejudice: see Antipas v. Coroneos, 1988 10348 (ON SC), 1988 CarswellOnt 358 (Ont. S.C.) at para. 16 to 20, and Stickel v. Lezzaik, 2015 ONSC 4659, para. 29.
27Where a Request to Admit is broadly drafted so as to elimination all significant triable issues and effectively eliminates all defences, withdrawals of admissions have been allowed as late as 10 years post Request to Admit: see Epstein Equestrian Enterprises Inc. v. Cyro Canada Inc., 2012 ONSC 4653 (S.C.J.) at paras. 9 to 13.
28Amendments to all of the “Facts” in the Defendants’ Response to the Plaintiff’s Request to Admit listed in Schedule A (other than 4a, 6 and 7e) are allowed. Based on the statements of the Plaintiff’s counsel at the hearing, it appears that the Plaintiff does not object to them. Even if the Plaintiff had opposed them, I would have allowed each of them. They are clarifications of otherwise unresponsive responses.
29Applying the three part tests from Antipas, the proposed amendments to the Response’s “Facts” 4a, 6 and 7e are also allowed.
30Triable Issue: As in Epstein, the Request to Admit in this case, although badly drafted, was designed to cover all aspects of the claim. Unlike in Epstein, where the admissions were deemed because of a failure to respond, the Defendants here did respond. This, however, is not a distinction. If the facts in the Plaintiffs Request to Admit were admitted in their totality, and the documents admitted as to their authenticity, there would have been no issue remaining for trial. Therefore, any amendment to any of the “facts” in this case raises a triable issue.
31The proposed amendment to Fact 4a, specifically, is a clear withdrawal of an admission that the Defendants signed the contract. The Defendant says now that the signature on the document is not his. He points to other documents that he signed on the same day that suggest he would not logically have signed the contract at issue in Fact 4a. This raises a triable issue.
32The proposed amendment to Fact 6 is that it was signed on a different date than March 8. This raises a triable issue as to the validity of the contract, including the inference that Mr. Marcos intentionally changed the date (the Defendants say, in order to help it align better with payment dates, thereby fitting with the Plaintiff’s theory of the case).
33The proposed amendment to Fact 7 also raises a triable issue. The Defendants say that while they signed the original document, Marcos substituted the first two pages of the document that they signed, with different pages.
34Reasonable Explanation: There is a reasonable explanation for the amendments to these three paragraphs.
35By his own admission, the Defendants’ lawyer who prepared the Response had little litigation experience. He was a real estate, corporate-commercial solicitor. He had little, if any, experience with Requests to Admit and Responses thereto. He was doing his best to draft the Response, but did not do so well. Further, it is clear that the lawyer did not capture the client’s instructed answers in the Response in many instances. To each of facts 4a, 6 and 7, the client said “[Dollar amount] DENY. Modified by Manny Marcos from the original.” The admission in the Response to each of these facts was “Admits signing the document but denies that all word was completed.” The Response is non responsive to the Request and does not reflect the client’s instructions.
36A lawyer’s error, the appointment of new competent counsel after the Response is given, or a new lawyer’s late discovery of the deficient Response, absent other factors, might be a reasonable explanation for the amendment: see Epstein, supra, para. 10 to 23, and Stickel, supra, para. 36. In this case, the Defendants changed counsel in early 2016. The new counsel wrote several times beginning in June, 2016 asking for a copy of any Request to Admit and Response thereto. It was not until August 3, 2016 that Plaintiff’s counsel sent to Defendants’ current counsel the Response the Defendants’ previous lawyer served. The new lawyer acted promptly. The Plaintiff’s lawyer did not respond meaning for two months.
37Prejudice: There is no evidence of any prejudice to the Plaintiffs in allowing the proposed amendments in the Response to “facts” 4a, 6 or 7e, given the Plaintiff’s position on this motion. The onus of proof is on the Defendants/Applicants, although the evidentiary burden then shifts to the Plaintiffs to establish some non-compensable prejudice.
38The Defendants have met their onus on prejudice. The Plaintiff has known about the proposed changes since at least August 26, 2016 and has not advised of any issue of prejudice. It had at least 2 months to do so, before the first return of this motion. It has had a further two weeks since then. The Plaintiff’s position that it would not challenge any evidence on any admission that has been modified or supplemented since the Response provided the evidence is in keeping with the evidence on the admission since the Response was delivered, indicates that there is no prejudice, or if there is, the Plaintiff waives it.
(vi) Proposed Amendments to “Authenticity”
39The dispute concerning the proposed amendments with respect to each of these documents is a misunderstanding on the Plaintiffs’ part about what constitutes an admission of authenticity.
40In each of the contested amendments to admissions of authenticity, the Response contained a variation on the Response listed at document 25, which said:
“Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.”
41The proposed amended Response to each document is:
“The Lads deny the authenticity of this document”.
42Under Rule 51.01, an admission as to a document’s authenticity includes that:
(a) a document that is said to be an original was printed, written, signed or executed as it purports to have been,
(b) a document that is said to be a copy is a true copy of the original [thereby incorporating (a), above, into this sub clause], and
(c) where the document is a copy of a letter, telegram or telecommunication, the original was sent as it purports to have been sent and received by the person to whom it is addressed.
43In other words, the admission of authenticity obviates the need to prove the document through witnesses. If one admits authenticity, one admits all of (a), (b) and (c) as they pertain to the specific document.
44The original responses to the specific request of authenticity at issue are not clear. At their highest, the responses admit all the aspects of the documents as listed in Rule 51.01, except the date the specific document was received. The evidence with respect to at least three of those documents, developed through affidavits, examinations and cross examinations, is that the documents are not authentic as defined in the Rule 51.01. Dates were inserted, signatures forged, and/or pages of the documents produced were substituted for those in the original.
45To the extent that the proposed amended Responses are withdrawal of admissions of authenticity, they too meet the three part test from Antipas, and for the same reasons.
Costs:
46The Defendants are wholly successful on their motion. As they are seeking an indulgence from the Court to amend their Response to the Plaintiff’s Request to Admit, normally they would not be entitled to costs.
47I will receive submissions as to who should pay costs to whom, and in what amounts, by writing. The Defendants costs submissions are to be served and filed by 4 p.m., November 25, and the Plaintiffs by 4 p.m., the following Friday December 2, 2016.
Trimble J.
Date: November 14, 2016
Schedule “A”
Request to Admit: Facts
1
Fact
Response drafted by Lads
Response served by Linton
Proposed Fresh as Amended Response
Court's Ruling
2
The plaintiff entered into a written agreement with the defendants Ishvar Lad and Sumitra Lad dated March 16, 2009 for the sum of $8,000.00 for, amongst other things, preparation of the design concept. The agreement was accepted in writing by those defendants April 26, 2009. The agreement is reproduced as production no. 12 from Schedule A to the Affidavit of Documents of the plaintiff. The plaintiff completed all of the contract work.
$8000.00 DENY. Was not given drawings of home. Double charge for submitting plans to the city
Admits signing the document but denies that all of the work was completed as they were never given a complete set of drawings.
Document 12 ("Doc 12") of the plaintiff's affidavit of document (the "Pl. Aff. Doc.") a) The Lads admit to signing the original version of Doc 12 on April 26, 2009. b) The Lads deny that Doc 12 establishes a contract between the parties. c) The Lads deny that the plaintiff completed all of the work outlined in the document. d) The Lads admit that the original version of the document included the figure of $8,000 and the date of March 16, 2009 next to Marcos' signature.
3
The plaintiff entered into a written agreement with the defendants Ishver Lad and Sumitra Lad dated April 20, 2009 (signed by those defendants April 26, 2009) for the sum of $7,700.00 and provided for interest on unpaid amounts of 2 % per month or 26.82% per annum and provided for the supply of gravel base for construction access to house, rough-in bell wire and grading. The agreement is reproduced as production no. 13 from Schedule A to the Affidavit of Documents. The plaintiff completed all of the contract work.
$7700.00 ADMIT.
Admits signing the document but denies that all of the work was completed as back-fill was used.
Document 13 ("Doc 13") of the Pl. Aff. Doc. a) The Lads admit to signing the original version of Doc 13 on April 26, 2009. b) The Lads deny that Doc 13 establishes a contract between the parties. c) The Lads deny that the plaintiff completed all of the work outlined in the document. d) The Lads deny the characterization of the scope of work - the document speaks for itself. e) The Lads admit that the original version of the document included the figure of $7,7000, the date of April 20, 2009 next to Marcos' signature, and the interest provision as described.
4
The plaintiff entered into a written agreement with the defendants Ishver Lad and Sumitra Lad dated August 4, 2009 (signed by those defendants August 14, 2009) for the sum of $20,700.00 and provided for interest on unpaid amounts of 2% per month or 26.82% per annum and provided for the removal of trees and fence, hydro trench and electrical work required by Hydro One. The agreement is reproduced as production no. 14 from Schedule A to the Affidavit of Documents. The plaintiff completed all of the contract work.
$20700.00 DENY. I paid over $4350.43 for green box and this amount was not reimbursed from this contract.
Admits signing the documents but denies that all work was completed as Defendant's paid for Hydro box directly.
Document 14 ("Doc 14") of the Pl. Aff. Doc. a) The Lads admit to signing the original version of Doc 14 on August 14, 2009. b) The Lads deny that Doc 14 establishes a contract between the parties. c) The Lads deny that the plaintiff completed all of the work outlined in the document. d) The Lads deny the characterization of the scope of work - the document speaks for itself. e) The Lads admit that the original version of the document included the figure of $20,7000, the date of August 4, 2009 next to Marcos' signature, and the interest provision as described.
5
The plaintiff entered into a written agreement with the defendants Ishver Lad and Sumitra Lad dated September 10, 2009 (signed by Ishver Lad on September 10, 2009) for the sum of $3,700.00 and provided for interest on unpaid amounts of 2% per month or 26.82% per annum and provided for supply and installation of sediment fence and culverts. The agreement is reproduced as production no. 15 from Schedule A to the Affidavit of Documents. The plaintiff completed all of the contract work.
$3700.00 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Document 15 ("Doc 15") of the Pl. Aff. Doc.
a) The Lads deny that the signature shown on Doc 15 is Ishver's signature, but admit that Ishver signed the original blank copy of Doc 15.
b) The Lads deny that Doc 15 establishes a contract between the parties.
c) The Lads deny that the plaintiff completed all of the work outlined in the document.
d) The Lads deny the characterization of the scope of work - the document speaks for itself.
e) The Lads admit that the original version of the document included the figure of $3,7000, the date of September 10, 2009 next to Marcos' signature, and the interest provision as described.
6
The plaintiff entered into a written agreement with the defendants Ishver Lad and Sumitra Lad dated January 20, 2010 (signed by those defendants on January 20, 2010) for the sum of $44,200.00 and provided for interest on unpaid amounts of 2% per month or 26.82% per annum and provided for drilling and supplying well, propane utility connections and tank and septic system. The agreement is reproduced as production no. 16 from Schedule A to the Affidavit of Documents. The plaintiff completed all of the contract work.
$44200 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Document 16 ("Doc 16") of the Pl. Aff. Doc. a) The Lads admit that they signed the original version of Doc 16 on January 20, 2010 b) The Lads deny that Doc 16 establishes a contract between the parties. c) The Lads deny that the plaintiff completed all of the work outlined in the document. d) The Lads deny the characterization of the scope of work - the document speaks for itself. e) The Lads admit that the original version of the document included the figure of $44,200, the date of January 20, 2010 next to Marcos' signature, and the interest provision as described.
7
The plaintiff entered into a written agreement with the defendants Ishver Lad and Sumitra Lad dated March 8, 2010 (signed by those defendants on March 8, 2010) for the sum of $100,100.00 and provided for interest on unpaid amounts of 2% per month or 26.82 % per annum and provided for project management. The agreement is reproduced as production no. 17 from Schedule A to the Affidavit of Documents. The plaintiff completed all of the contract work.
$100100.00 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Document 17 ("Doc 17") of the Pl. Aff. Doc. a) The Lads admit that they signed the original version of Doc 17. b) The Lads deny having signed Doc 17 on March 8. c) The Lads deny that the document establishes a contract between the parties. d) The Lads deny that the plaintiff completed all of the work outlined in the document. e) The Lads deny the characterization of the scope of work - the document speaks for itself. e) The Lads admit that the original version of the document included the figure of $100,100, the date of March 8, 2010 next to Marcos' signature, and the interest provision as described.
8
The plaintiff entered into a written agreement with the defendants Ishver Lad and Sumitra Lad dated March 12, 2010 (signed by those defendants May 31, 2010) for the sum of $718,700.00 and provided for interest on unpaid amounts of 2% per month or 26.82% per annum and provided for construction of a new home - hard costs. The agreement is reproduced as production no. 18 from Schedule A to the Affidavit of Documents. The plaintiff completed all of the contract work .
$718700.00 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Document 18 ("Doc 18") of the Pl. Aff. Doc.
a) The Lads admit that they signed the original version of Doc 18 on May 31, 2010. b) The Lads deny that the document establishes a contract between the parties.
c) The Lads deny that the plaintiff completed all of the work outlined in the document.
d) The Lads deny the characterization of the scope of work - the document speaks for itself.
e) The Lads deny that the amount shown in the original version of the document was $718,700.
f) The Lads admit that the original version of the document included the date of March 12, 2010 next to Marcos' signature and the interest provision as described.
9
During the course of construction, the plaintiff supplied and installed extras to the contract after discussion with the defendants Ishver Lad and Sumitra Lad and agreement on the cost of labour and material. The plaintiff prepared a handwritten summary of the agreed extras and the prices therefor totaling $62,210.00 which summary was provided to the said defendants. The plaintiff supplied and installed all of the 22 extras set out on the summary which is reproduced as the plaintiff's production no. 19.
$62210.00 DENY. Never heard of this until Ritchie mentioned it.
Denies any knowledge of the document prior to litigation and denies that all work was completed.
The Lads deny all allegations made in paragraph 8.
10
The_plaintiff prepared and delivered invoice 0907-441 dated September 10, 2009 in the amount of $11,340.00, which invoice was delivered to the defendants Ishver Lad and Sumitra Lad and paid by them. The invoice covered the work forming the subject matter of the contract identified in fact 1 above. The unpaid balance of $7,140.00 was paid by the defendants by cheque dated September 22, 2009 (plaintiff's production no. 34).
Invoice 0907-441 DENY presented 22Sept2009 and paid same date with PC cheque 123.
Admits the Invoice but denies it relates to specific work and admits funds were paid as part of progress advances.
Invoice 0907-441 found at document 20 ("Doc 20") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $11,340 and dated September 10, 2009. b) The Lads deny that the invoice relates specifically to Doc 12. c) The Lads deny that the invoice was paid in the manner outlined.
11
The plaintiff prepared and delivered invoice 0907-441(b) dated September 10, 2009 in the amount of $8,085.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the contract work identified in fact 2 above. The defendants paid this invoice half by deposit and the balance of $4,042.50 paid in part by cheque dated April 20, 2009 (plaintiff's production 33).
Invoice 0907-441(b) DENY, paid cash balance on 22Sept2009 signed in green book.
Admits the Invoice but denies it relates to specific work and admits funds were paid as part of progress advances. A cash advance was also made.
Invoice 0907-441(b) found at Doc 20 of the Pl. Aff. Doc. a)The Lads admit that Ishver received the original version of this invoice, which was in the amount of $8,085 and dated September 10, 2009. b) The Lads deny that the invoice relates specifically to Doc 13. c) The Lads deny that the invoice was paid in the manner outlined.
12
The plaintiff prepared and delivered invoice 0907-441(c) dated September 10, 2009 in the amount of $9,780.75 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for first installment for the contract work identified in fact 3 above. This invoice was paid in full by the defendants. (plaintiff's production 20).
Invoice 0907-441(c) DENY, paid cash on 22Sept2009 signed in green book.
Admits the Invoice but denies it relates to specific work and admits funds were paid as part of progress advances. A cash advance was also made.
Invoice 0907-441(c) found at Doc 20 of the Pl. Aff. Doc.
a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $9,780.75 and dated September 10, 2009.
b) The Lads deny that the invoice relates specifically to Doc 14.
c) The Lads deny that the invoice was paid in the manner outlined.
13
The plaintiff prepared and delivered invoice 0907-441(d) dated November 17, 2009 in the amount of $11,954.25 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the second and third installments for the contract work identified in fact 3 above. This invoice was paid in full by the defendants. (plaintiff's production 21).
Invoice 0907-441(d) DENY paid draft of $190000.00 on 17November2009. Received invoice on 20Jan2010.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(d) found at document 21 ("Doc 21") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $11,954.25 and dated November 17, 2009. b) The Lads deny that the invoice relates specifically to Doc 14. c) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
14
The plaintiff prepared and delivered invoice 0907-441(e) dated November 25, 2009 in the amount of $3,885.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the first and second installments for the contract work identified in fact 4 above. This invoice was paid in full by the defendants. (plaintiff's production 22).
Invoice 0907-441(e) DENY. Received invoice on 20Jan2010.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(e) found at document 22 ("Doc 22") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $3,885 and dated November 25, 2009. b) The Lads deny that the invoice relates specifically to Doc 15. c) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
15
The plaintiff prepared and delivered invoice 0907-441(f) dated December30, 2009 in the amount of $8,820.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the balance of the contract work identified in fact 4 above. This invoice was paid in full by the defendants. (plaintiff's production 23).
Invoice 0907-441(f) DENY. Received invoice on 20Jan2010.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(f) found at document 23 ("Doc 23") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $8,820 and dated December 30, 2009. b) The Lads deny that the invoice relates specifically to Doc 15. c) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
16
The plaintiff prepared and delivered invoice 0907-441(g) dated January 13, 2010 in the amount of $19,635.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for item 2 in the contract described in fact 5 above. This invoice was paid in full by the defendants. (plaintiff's production 24).
Invoice 0907-441(g) DENY. Received invoice on 20Jan2010.
Denies receiving the invoice on the date alleged or that it relates to a specific contract
Invoice 0907-441(g) found at document 24 ("Doc 24") of the Pl. Aff. Doc.
a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $19,635 and dated January 13, 2010.
b) The Lads deny that the invoice relates specifically to Doc 16.
c) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
17
The plaintiff prepared and delivered invoice 0907-441(h) dated January 20, 2010 in the amount of $2,940.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for completion of item 1 in the contract described in fact 5 above. This invoice was paid in full by the defendants. (plaintiff's production 25).
Invoice 0907-441(g) DENY. Received invoice on 20Jan2010.
Admit.
Invoice 0907-441(h) found at document 25 ("Doc 25") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $2,940 and dated January 20, 2010. b) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
18
The plaintiff prepared and delivered invoice 0907-441(i) dated March 5, 2010 in the amount of $23,835.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for completion of item 3 in the contract described in fact 5 above. This invoice was paid in full by the defendants. (plaintiff's production 26).
Invoice 0907-441(i) DENY. Received 19April2010.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(i) found at document 26 ("Doc 26") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $23,835 and dated March 5, 2010. b) The Lads deny that the invoice relates specifically to Doc 16. c) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
19
The plaintiff prepared and delivered invoice 0907-441(j) dated March 15, 2010 in the amount of $105,105.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for contract work itemized in the contract described in fact 6 above.This invoice was paid in full by the defendants. (plaintiff's production 27).
Invoice 0907-441(j) DENY. Received 19April2010.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(j) found at document 27 ("Doc 27") of the Pl. Aff. Doc. a) The Lads admit that Ishver received the original version of this invoice, which was in the amount of $105,105 and dated March 15, 2010. b) The Lads deny that the invoice relates specifically to Doc 17. c) The Lads deny that the invoice was paid in full as the phrase is generally understood; rather, amounts were paid as part of an ad hoc payment system whereby the Lads made payments to Marcos when Marcos demanded it.
20
The plaintiff prepared and delivered invoice 0907-441(k) dated May 21, 2010 in the amount of $40,000.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for first installment for the contract described in fact 7 above (plaintiff's Form 51 A Request to Admit PageS production 28). This invoice was paid in full by the defendants by bank draft dated May 21, 2010. (plaintiff's production 36).
Invoice 0907-441(k) DENY. Never saw this until Ritchie showed it to me. Funny how these next invoices are the same as the cheques given when before the invoices were not.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(k) found at document 28 ("Doc 28") of the Pl. Aff. Doc.
a) The Lads deny that the plaintiff provided them with the original version of this invoice in the normal course.
b) The Lads deny that the invoice relates specifically to Doc 18.
c) The Lads deny that they made any specific payments in response to receiving this invoice.
21
The plaintiff prepared and delivered invoice 0907-441(1) dated June 11, 2010 in the amount of $60,000.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for second installment for contract described in fact 7 above (plaintiff's production 29). This invoice was paid in full by the defendants by cheque dated June 11, 2010 (plaintiff's production 37).
Invoice 0907-441(l) DENY. Never saw this until Ritchie showed it to me.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(l) found at document 29 ("Doc 29") of the Pl. Aff. Doc. a) The Lads deny that the plaintiff provided them with the original version of this invoice in the normal course. b) The Lads deny that the invoice relates specifically to Doc 18. c) The Lads deny that they made any specific payments in response to receiving this invoice.
22
The plaintiff prepared and delivered invoice 0907-441(m) dated July 16, 2010 in the amount of $95,000.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the third installment for the contract described in fact 7 above (plaintiff's production 30). This invoice was paid in full by the defendants by cheque dated August 26, 2010 (plaintiff's production 38).
Invoice 0907-441(m) DENY. Never saw this until Ritchie showed it to me.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(m) found at document 30 ("Doc 30") of the Pl. Aff. Doc. a) The Lads deny that the plaintiff provided them with the original version of this invoice in the normal course. b) The Lads deny that the invoice relates specifically to Doc 18. c) The Lads deny that they made any specific payments in response to receiving this invoice.
23
The plaintiff prepared and delivered invoice 0907-441{n) dated July 31, 2010 in the amount of $127,050.00 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the fourth installment for the contract described in fact 7 above (plaintiff's production 31). This invoice was paid in full by the defendants by cash payments catalogued and receipted in writing (plaintiff's production 39).
Invoice 0907-441(n) DENY. Wrong cash amount. Never saw this until Ritchie showed it to me.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(n) found at document 31 ("Doc 31") of the Pl. Aff. Doc. a) The Lads deny that the plaintiff provided them with the original version of this invoice in the normal course. b) The Lads deny that the invoice relates specifically to Doc 18. c) The Lads deny that they made any specific payments in response to receiving this invoice.
24
The plaintiff prepared and delivered invoice 0907-441(o) dated November 10, 2010 in the amount of $523,068.52 which invoice was delivered to the defendants Ishver Lad and Sumitra Lad for the fifth installment for the contract described in fact 7 above (plaintiff's production 32). The defendants have not paid any part of this invoice.
Invoice 0907-441(o) DENY. Wrong amount. Never saw this until Richie showed it to me.
Denies receiving the invoice on the date alleged or that it relates to a specific contract.
Invoice 0907-441(o) found at document 32 ("Doc 32") of the Pl. Aff. Doc.
a) The Lads deny that the plaintiff provided them with the original version of this invoice in the normal course. b) The Lads deny that the invoice relates specifically to Doc 18. c) The Lads admit that they have not paid the amount allegedly owing in this invoice.
The defendants Ishver Lad and Sumitra Lad made payments to the plaintiff on account of the contract work as follows: April 20, 2009 - cheque $8,242.50 September 20, 2009 - cheque $7,140.00 November 17, 2009 - bank draft $190,000.00 May 21, 2010 - bank draft $40,000.00 June 11, 2010 - cheque $60,000.00 August 26, 2010 - cheque $95,000.00 Various Dates - cash $127,050.00
DENY. Cash amount wrong. Not all cheques present.
Admit the payments listed but deny that it is a complete accounting of all monies paid.
Admit the payments listed but deny that it is a complete accounting of all monies paid.
Request to Admit: Authenticity
Note: only commenting on authenticity - not agreeing to characterization of document
Document
Response drafted by Lads
Response served by Linton
Proposed Fresh as Amended Response
Court's Ruling
1
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated March 16, 2009 (copy already delivered as plaintiff's production 12).
$8000.00 DENY. Marcos has not fulfilled their work of giving me a concept drawing for the house. Double charge for submitting plans to obtain permits.
Admits signing the document but denies that all of the work was completed as they were never given a complete set of drawings.
Doc 12: The Lads deny the authenticity of this document.
2
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated April 20, 2009 (copy already delivered as plaintiff's production 13).
$7700.00 ADMIT if it is the B-gravel contract.
Admits signing the document but denies that all of the work was completed as back-fill was used.
Doc 13: The Lads admit the authenticity of this document.
3
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated August 4, 2009 (copy already delivered as plaintiff's production 14).
$20700.00 DENY. I paid over $4350.43 for green box and this amount was not reimbursed from this contract.
Admits signing the documents but denies that all work was completed as Defendant's paid for Hydro box directly.
Doc 14: The Lads admit the authenticity of this document.
4
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated September 10, 2009 (copy already delivered as plaintiff's production 15).
$3700.00 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Doc 15: The Lads deny the authenticity of this document.
5
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated January 20, 2010 (copy already delivered as plaintiff's production 16).
$44200 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Doc 16: The Lads deny the authenticity of this document.
6
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated March 8, 2010 (copy already delivered as plaintiff's production 17).
$100100.00 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Doc 17: The Lads deny the authenticity of this document.
7
Signed contract between the plaintiff and Ishver Lad and Sumitra Lad dated March 12, 2010 (signed May 31, 2010) (copy already delivered as plaintiff's production 18).
$718700.00 DENY. Modified by Manny Marcos from original.
Admits signing the document but denies that all work was completed.
Doc 18: The Lads deny the authenticity of this document.
8
Undated handwritten list of extras totaling $62,210.00 (copy already delivered as plaintiff's production 19).
$62210.00 DENY. Never heard of this until Ritchie mentioned it.
Denies any knowledge of the document prior to litigation and denies that all work was completed.
Doc 19: The Lads deny the authenticity of this document.
9
Marcos Limited B.D.C. invoice 0907-441 dated September 10, 2009 in the amount of $11,340.00 (copy already delivered as plaintiff's production 20).
Invoice 0907-441 DENY presented 22Sept2009 and paid same date with PC cheque 123.
Admits the Invoice but denies it relates to specific work and admits funds were paid as part of progress advances.
Invoice 0907-441 at Doc 20: The Lads deny the authenticity of this document.
10
Cheque from Ishver Lad or Sumitra Lad to Marcos Limited B.D.C. dated September 22, 2009 in the amount of $7,140.00 (copy already delivered as plaintiff's production 34).
ADMIT. PC cheque 123 $7140.00 dated 22Sep2009
Admits.
Doc 34: The Lads admit the authenticity of this document.
11
Marcos Limited B. D.C. invoice 0907-441(b) dated September 10, 2009 in the amount of $8,085.0 (copy already delivered as plaintiff's production 20).
Invoice 0907-441(b) DENY, paid cash balance on 22Sept2009 signed in green book.
Admits the Invoice but denies it relates to specific work and admits funds were paid as part of progress advances. A cash advance was also made.
Invoice 0907-441(b) at Doc 20: The Lads admit the authenticity of this document.
12
Cheque from Ishver Lad or Sumitra Lad to Marcos Limited B.D.C. dated April 20, 2009 in the amount of $8,242.50 (copy already delivered as plaintiff's production 33).
ADMIT. PC cheque 85 $8242.50 dated 20April2009.
Admits.
Doc 33: The Lads admit the authenticity of this document.
13
Marcos Limited B.D.C. invoice 0907-441(d) dated November 17, 2009 in the amount of $11,954.25 (copy already delivered as plaintiff's production 21).
Invoice 0907-441(d) DENY paid draft of $190000.00 on 17November2009. Received invoice on 20Jan2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 21: The Lads deny the authenticity of this document.
14
Bank draft from Royal Bank of Canada to Marcos Ltd. BDC dated November 17, 2009 in the amount of $190,000.00 (copy already delivered as plaintiff's production 35).
ADMIT. Royal Bank draft for $190000.00 dated 17November2009.
Admits.
Doc 35: The Lads admit the authenticity of this document.
15
Marcos Limited B.D.C. invoice 0907-441(e) dated November 25, 2009 in the amount of $3,885.00 (copy already delivered as plaintiff's production 22).
Invoice 0907-441(e) DENY. Received invoice on 20Jan2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 22: The Lads deny the authenticity of this document.
16
Marcos Limited B.D.C. invoice 0907-441(f) dated December 30, 2009 in the amount of $8,820.00 (copy already delivered as plaintiff's production 23).
Invoice 0907-441(f) DENY. Received invoice on 20Jan2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 23: The Lads deny the authenticity of this document.
17
Marcos Limited B.D.C. invoice 0907-441(g) dated January 13, 2010 in the amount of $19,635.00 (copy already delivered as plaintiff's production 24).
Invoice 0907-441(g) DENY. Received invoice on 20Jan2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 24: The Lads deny the authenticity of this document
18
Marcos Limited B.D.C. invoice 0907-441(h) dated January 20, 2010 in the amount of $2,940.00 (copy already delivered as plaintiff's production 25).
Invoice 0907-441(h) ADMIT. Received 20Jan2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 25: The Lads admit the authenticity of this document.
19
Marcos Limited B.D.C. invoice 0907-441(i) dated March 5, 2010 in the amount of $23,835.00 (copy already delivered as plaintiff's production 26).
Invoice 0907-441(i) DENY. Received 19April2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 26: The Lads deny the authenticity of this document.
20
Marcos Limited B.D.C. invoice 0907-441(j) dated March 15, 2010 in the amount of $105,105.00 (copy already delivered as plaintiff's production 27).
Invoice 0907-441(j) DENY. Received 19April2010.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 27: The Lads deny the authenticity of this document.
21
Marcos Limited B.D.C. invoice 0907-441(k) dated May 21, 2010 in the amount of $40,000.00 (copy already delivered as plaintiff's production 28).
Invoice 0907-441(k) DENY. Never saw this until Ritchie showed it to me. Funny how these next invoices are the same as the cheques given when before the invoices were not.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 28: The Lads deny the authenticity of this document.
22
Bank draft from Royal Bank of Canada to Marcos Ltd B. D.C. dated May 21, 2010 in the amount of $40,000.00 (copy already delivered as plaintiff's production 36).
ADMIT $40000.00 Royal Bank draft dated 21May2010.
Admits.
Doc 36: The Lads admit the authenticity of this document.
23
Marcos Limited B.D.C. invoice 0907-441(1) dated June 11, 2010 in the amount of $60,000.00 (copy already delivered as plaintiff's production 29) .
Invoice 0907-441(l) DENY. Never saw this until Ritchie showed it to me.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 29: The Lads deny the authenticity of this document.
24
Cheque from Ishver Lad or Sumitra Lad to Marcos Limited B.D.C. dated June 11, 2010 in the amount of $60,000.00 (copy already delivered as plaintiff's production 37).
DENY. 11June2010 paid to Caterina Marcos PC cheque 017 $60000.00 for construction of home. PC cheque processed 15June2010
Admits the cheque with a different payee.
Doc 37: The Lads admit the authenticity of this document.
25
Marcos Limited B.D.C. invoice 0907-441(m) dated July 16, 2010 in the amount of $95,000.00 (copy already delivered as plaintiff's production 30).
Invoice 0907-441(m) DENY. Never saw this until Ritchie showed it to me.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 30: The Lads deny the authenticity of this document.
26
Cheque from Ishver Lad or Sumitra Lad to Marcos Limited B.D.C. dated August 26, 2010 in the amount of $95,000.00 (copy already delivered as plaintiff's production 38).
DENY. 26August2010 paid to Joe Marcos PC cheque 21 $95000.00 for construction of home.
Admits the cheque with a different payee.
Doc 38: The Lads admit the authenticity of this document.
27
Marcos Limited B.D.C. invoice 0907-441(n) dated July 31, 2010 in the amount of $127,050.00 (copy already delivered as plaintiffs production 31).
DENY. Never saw this until Ritchie showed it to me.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 31: The Lads deny the authenticity of this document.
28
Undated handwritten summary signed by owner and builder of cash payments received totaling $127,050.00 (copy already delivered as plaintiffs production 39).
DENY. Modified by Manny Marcos from original.
Denied as incomplete.
Doc 39: The Lads deny the authenticity of this document.
29
Marcos Limited B.D.C. invoice 0907-441(o) dated November 10, 2010 in the amount of $523,068.52 (copy already delivered as plaintiff's production 32).
DENY. wrong amount. Never saw this until Richie showed it to me.
Admits the invoice but denies receiving the invoice on the date alleged or that it relates to a specific contract.
Doc 32: The Lads deny the authenticity of this document.
CITATION: Marcos Limited Building Design Consultants v. Lad, 2016 ONSC 7071
COURT FILE NO.: CV-11-0306-00
DATE: 2016 11 14
ONTARIO
SUPERIOR COURT OF JUSTICE
Marcos Limited Building Design Consultants, Plaintiff
AND:
Ishver Lad, Sumitra Lad, Concentra Financial Services Association and Canadian Imperial Bank of Commerce, Defendants
ENDORSEMENT
Trimble J.
Released: November 14, 2016