Court File and Parties

COURT FILE NO.: CV-14-515247 DATE: 20170502 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AACR Inc. o/a Winmar Toronto/Brampton, Plaintiff AND: Lixo Investments Limited and Bolliger Holdings Corporation and Intact Insurance Company Intact Compagnie D’Assurance and Granite Claims Solutions LP Intact, Defendants

BEFORE: Pollak J.

COUNSEL: Renata Kis, for the Plaintiff Stefania Sdao, for the Defendant Intact Insurance Company R. Lee Akazaki, for the Defendant Granite Claims Solutions LP Charles Wagman, for the Defendant Lixo Investments Limited

HEARD: June 6, 2016, July 25, 2016 and February 8, 2017

Endorsement

[1] The Plaintiff, AACR Inc. o/a Winmar Toronto/Brampton (“Winmar”), performed work on a property owned by the Defendant, Lixo Investments Limited ("Lixo") and insured by the Defendant, Intact Insurance Company Intact Compagnie D'assurance ("Intact"). The Defendant, Granite Claims Solutions LP Intact ("Granite"), is the insurance adjuster for Intact.

[2] There are no counterclaims that Winmar was deficient.

[3] Winmar has not been paid for its work. This is an action under the Construction Lien Act, R.S.O. 1990, c. C.30 (“Act”) for payment for work performed. Lixo's position is that it did not request Winmar to do the work; Granite's position is that it requested the work as an agent; Intact's position is that Lixo was supposed to pay for the work.

[4] Winmar emphasizes, and the parties agree, that there is a dispute between Lixo and Intact about the extent of the insurance coverage.

[5] There are therefore three motions for summary judgment before this court:

• Winmar’s motion for summary judgment against all of the Defendants;
• Intact and Granite’s motions for summary judgment for a dismissal of Winmar’s claims against them.

[6] Lixo has not brought a motion to dismiss Winmar’s claims against it. Instead, Lixo’s position is that Winmar’s summary judgment motion should be dismissed as there are genuine issues requiring a trial.

[7] Justice McEwen granted leave to bring these summary judgment motions pursuant to section 67(2) of the Act.

[8] On these motions, the Court considered extensive affidavit evidence.

[9] Lixo owns 86, 88 and 90 Yorkville Avenue, Toronto (collectively, the "Property").

[10] There was a fire at 84 Yorkville Avenue, the adjacent property, on January 22, 2014.

[11] Lixo's property manager, Mr. Allan Brown, was told by the City of Toronto building department that when the Fire Department allowed Lixo access, it had to make the building safe. The building department issued a work order: "You are required to immediately secure the site by restricting access to the property to protect the public. Ensure the site is left in a safe and secure manner".

[12] Lixo advised Intact, its insurer, of the fire. Granite, the adjuster retained by Intact with respect to this claim, contacted Lixo to meet and visit the Property the morning after the fire.

[13] Granite made arrangements for a security guard to secure the Property.

[14] Mr. Kevin Gladders, an adjuster with Granite, and Mr. Byron Kent, a representative of the Plaintiff Winmar, met with Mr. Brown at Lixo's office, because Winmar was on Intact's list of preapproved contractors and chosen by Granite to do the emergency repairs at the Property.

[15] They all agreed that the property needed to be secured; an engineer would have to attend and assess the damage; and the required repairs would then be determined based on the engineer's assessment. Mr. Kent printed a standard document from his laptop and told Mr. Brown to sign it to give Winmar access to the Property to secure it. Mr. Brown signed it. The document authorized Winmar to do "temporary repairs or emergency service as requested by Kevin Gladders of Granite Claims".

[16] The scope of the work was to secure the Property, ensure the doors were functional, that the windows were not broken, that there were no overhanging projections and to put up any needed boarding to prevent any injuries.

[17] Although the document states there was a cost estimate attached, it was not. Mr. Kent testified that they did not discuss the cost of emergency repairs at the meeting, but he did discuss costs with the adjuster later. The number "thrown around" at that later meeting was $100,000 – $150,000. Mr. Kent said he was not sure if Mr. Brown of Lixo was present at the time. Mr. Brown denies any knowledge of the “number”.

[18] Mr. Kent agreed that Winmar was not retained to do “restoration” work. Mr. Kent also said that "temporary repairs or emergency service" is a broad term in their industry. He said there was a discussion regarding the immediate work to make the building secure, i.e. boarding up so that the public could not enter; making the building safe, i.e. clearing the large build-up of ice at the front of the Property and on the stairwells; bringing in contractors to do inspections to make sure the pipes had not frozen. Mr. Gladders also confirmed that Granite recommended emergency services to the Property and that the services referred to in the authorization that Lixo signed were to board up and preserve what was in the buildings. Any other work would have to be discussed and authorized at a later time.

[19] There is no evidence of a second agreement altering the scope of the work or authorizing other work. There is some evidence that, as of May 2, 2014, Granite planned to secure bids from three contractors, including Winmar, related to further work. However there is no evidence of these bids, the outcome of the process, or the scope of work to be done under the bids. There is no evidence as to who was awarded the bid.

[20] Granite's position is that its task was to introduce the Plaintiff to Lixo and that it was up to Lixo to retain the Plaintiff or to refuse the work to be done. Lixo denies this. Rather, Mr. Brown was told that he had to sign the document in order to authorize Winmar access to the Property to do the emergency repairs, namely the stabilization and securement work. Lixo argues that Winmar had already been engaged by Granite on behalf of Intact. Mr. Brown did understand that he could have refused to sign the document. If he had done that, Winmar would not have been able to access the Property and would not be able to secure the Property. Mr. Brown had no reason to doubt Granite's (or Intact's choice) and signed the authorization.

[21] It is Lixo’s position that there was never a discussion between Winmar and Lixo with respect to the scope of the Plaintiff's work (other than the securement of the Property) or the fees they would be charging. There was no negotiation between Lixo and Winmar to do any construction or other work at the Property (other than securement as per the authorization). The authorization was signed to address an emergency - that is, to secure and stabilize the Property immediately following the fire. If Winmar did any work outside this narrow scope, that work was not authorized by Lixo.

[22] Lixo submits that the work Winmar was authorized to do by Mr. Brown would have been completed in a few hours or days, or a week at the most. It would not have taken months to complete.

[23] All parties agree that separate and apart from the fire that gave rise to the claim, a City pipe burst, causing damage to the premises occupied by Club V, a tenant of Lixo, in the basement of 88-90 Yorkville Avenue.

[24] Mr. Greg Madill is an adjuster at Granite who took over the file in early May 2014 from Kevin Gladders. Mr. Madill testified that when he took over the file, Winmar had completed its work at 86 Yorkville as it had not done much work at that property. He confirmed that Club V had very little damage from the fire and was open shortly after the fire. Approximately two weeks after the fire, a pipe burst, damaging Club V, as I have referred to above. The pipe incident was a separate incident apart from the fire but was somehow assessed to be related to the fire and was included in the fire claim by Granite. However, Mr. Madill admitted that the issue of the broken City pipe was "not an Intact issue", was "certainly outside of the fire remediation" and was a "separate, distinct, wholly independent issue". He also confirmed that the continuous flooding of Club V was not related to the fire claim.

[25] Mr. Kent from Winmar agreed that the reason the building continued to flood was because of the "drain issue", which he confirmed had nothing to do with the fire. He stated that he was instructed by Granite to bill Lixo for 100 percent of the work. Winmar gave further evidence that a significant portion of its work on the Property consisted of drying with specialized equipment.

[26] Lixo's evidence is that the flooding of Club V’s unit occurred as the City supply line valve to the City hydrant in front of 84 Yorkville was causing the water to leak into the basement of 88 Yorkville Avenue. This continuous leak is why Club V's unit did not dry out. All of this work to Club V’s premises, which Winmar agrees was the bulk of the work it performed, was unrelated to the fire claim and is submitted by Lixo to be outside of the scope of work that Lixo authorized.

[27] The parties agree that Club V's insurer was also Intact. Lixo submits that Intact may have engaged Winmar to do restoration work to Club V's unit and that such work had nothing to do with Lixo’s claim. Any work that was performed for Club V was not the responsibility of Lixo as it did not authorize any such work. The work should have been the subject of Club V’s insurance claim. The authorization document that Mr. Brown signed was in relation to the fire claim. Drying Club V's unit in the basement of 88-90 Yorkville was not part of the scope of the work Winmar was authorized to perform under that agreement.

[28] Lixo argues that all of the repair and restoration work in Club V's unit was under the direction of Club V and/or its insurer, Intact. Club V, rather than Lixo, had a restoration plan. Lixo submits that Intact appears to have engaged the same contractor to do the work.

The Test for Summary Judgment

[29] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada provided a roadmap to follow on a motion for summary judgment. At para. 66 of the decision, the court states:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[30] I am also mindful of the Ontario Court of Appeal’s caution in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 35, that I must “assess the advisability of a staged summary judgment process in the context of the ‘litigation as a whole’”. The Court noted at para. 37 that in a staged summary judgment process, there is a risk that a trial judge would “develop a fuller appreciation of the relationships and the transactional context than the motions judge”, which can force a trial decision “that would be implicitly inconsistent with the motion judge’s finding…, even though the parties would be bound by that finding.” The Court noted that the process, in such a context, “risks inconsistent findings and substantive injustice” (at para. 37).

[31] The procedure from Hryniak is designed to be expeditious and affordable. However, it must be emphasized and remembered that the process must also ensure that the dispute is resolved fairly and justly.

Winmar’s Evidence

[32] Notwithstanding the extensive affidavit evidence on these three motions, I find that Winmar’s evidence is not sufficient to prove its claim in its summary judgment motion. The evidence is unclear about who authorized, approved or oversaw any work done by Winmar, apart from the authorization signed by Mr. Brown related to emergency work. Winmar’s email evidence suggests that various parties, including Intact, Granite, PLM Group and Lixo may have been involved in giving some instructions to Winmar or approving the scope of work at various times. There is also email evidence that some of these parties were confused about who was giving directions to Winmar.

[33] Most importantly, it is also unclear what work was actually performed by Winmar and whether this was work done for Lixo or for Club V. The invoices submitted by Winmar, for example, do not itemize what work was performed, where it was performed or when it was performed.

The Invoices

[34] Mr. Kent confirmed that no estimates were provided to Lixo or Granite in advance. The "estimates" (or work descriptions) accompanying the invoices described the work already done and invoiced. He said that no "estimate" accompanied the first invoice of $50,000.00, which was a progress draw that had been agreed to between Mr. Kent and Mr. Gladders of Granite with no involvement from Lixo. The invoice was initially sent to Granite and later to Lixo.

[35] Mr. Madill testified that Granite received an "estimate" for the emergency work along with an invoice on May 30, 2014 and that no prior estimate had been provided. He said that the first invoice dated March 31, 2014 was addressed to Lixo care of Granite. That invoice came to Mr. Madill's attention on May 5, 2014. He told Winmar that Winmar should bill Lixo directly.

[36] With respect to the work that Winmar claims it did in June, July and August, Winmar has produced three invoices without the accompanying correspondence which Mr. Kent testified was sent out. The invoices referenced a supplemental emergency estimate and a revised supplemental emergency estimate. Counsel for Winmar undertook to produce these estimates, if found. No estimates have been produced.

[37] Mr. Kent said he believed the second and the third of these summer invoices were with respect to the built-in millwork that had to be removed from the site during mould remediation work in the basement. Lixo submits that this is for work done for Club V.

[38] Winmar's evidence is that it submitted three more invoices in September 2014. No witness has knowledge of these invoices. There were no "estimates" or work descriptions attached to the invoices produced by Winmar even though the invoices refer to a “supplemental emergency estimate”. The invoices only describe the work/services as “[e]mergency [s]ervices”, or “[r]epairs [s]ervices” or “storage”.

[39] At para. 78 of its factum, Lixo argues that:

(a) Winmar has failed to produce documents showing what work, if any, it performed in June-August 2014; (b) Any work that may have been performed, is likely to have been work performed for Club V; (c) Winmar has not named Club V as a Defendant; (d) Winmar had no contract with Lixo to do work in Club V's unit; (e) Winmar had no contract with Lixo to do work at the Premises unrelated to the fire; (f) Winmar did not give notice to Lixo about the work it was performing for Club V.

Issues Requiring a Trial

[40] At para. 17 of its factum, Lixo argues that the following issues require a trial:

(a) …[whether] the damage caused by the burst City pipe was related to the fire; (b) …whether Lixo or Club V would be liable for any loss sustained as a result of the burst pipe; (c) …who authorized the Plaintiff to do work in relation to the burst pipe and who should have been billed for that work; (d) …when the Plaintiff last worked on the Premises in relation to the fire, for which it had authorization from Lixo; (e) [t]o the extent that Lixo may be found to be responsible for any work that the Plaintiff did in relation to the burst pipe,… whether or not Lixo is holding any monies paid by Intact to Lixo in trust the Plaintiff...

What was the scope of the contract between Lixo and Winmar?

[41] To summarize, Lixo submits at paras. 59 – 62 of its factum that:

There can be no dispute that any monies that Lixo may owe to Winmar, has to be for work performed by Winmar in relation to the claim that Lixo made to Intact, which was in respect to the fire damage to the Property as a result of the fire at 84 Yorkville Avenue;

There can also be no dispute that the only written contract between Lixo and Winmar is the authorization signed by Lixo on January 23, 2016.

There can be no dispute that the scope of the contract was to do emergency repairs to the Property as a result of the fire.

There is no dispute that Winmar did not submit an estimate to Lixo. It is unbelievable that Lixo would be agreeable that a contractor submit an account of over $200,000.00 to just secure the premises without first obtaining quotes and estimates.

[Emphasis omitted.]

[42] Lixo submits that Granite was in control of the site and that Lixo had minimal involvement in the work that Winmar was performing. As noted above, it is unclear who authorized the work performed by Winmar.

Was Winmar's Lien registered within the timelines prescribed by the Construction Lien Act?

[43] Winmar alleges that August 1, 2014 was the last day that Winmar performed work at the Premises. There is no evidence as to what work Winmar did at the Property up to August 2014. Winmar provided one time sheet for an employee who disassembled and picked up equipment at the building on August 1, 2014 and a list of pay cheques during these months relating to work done at Club V. Mr. Kent undertook to produce the estimate which included a description of work for that period and took under advisement to produce the time cards, but failed to do.

[44] It is submitted that this information, as well as any information related to any work done by Winmar at the Property after May 23, 2014, is needed to determine if Winmar's lien was registered within the time prescribed by the Act. It is important to emphasize that Mr. Kent was not able to testify as to what work was done in July 2014 without looking at the estimates and/or the time cards. Although counsel for Winmar took under advisement to produce the time cards, that was not done and there is no evidence on that work.

What is the quantum of work for which Lixo may be liable to Winmar?

[45] Lixo admits that because of a co-insurance provision, Lixo was liable to pay a portion of Winmar's invoice.

[46] The evidence before this Court is that Winmar submitted a progress draw for $50,000.00 without an "estimate" or a work description appended, and a further invoice dated May 30, 2014 for $132,784.91, together with an "estimate" or work description. The "estimate" covers work done up to May 22, 2014. As mentioned above, the invoices do not itemize the work performed and there is no evidence as to what work was performed.

[47] Further, with respect to Winmar’s work, it is unclear what portion of that work was done by Winmar for Lixo within the scope of the authorization that Lixo signed. I agree that the evidence is that the bulk of the work was related to a flood and/or burst pipes and/or drain issues that were unrelated to the fire. The evidence is unclear as to what part of Winmar's work was work done for Lixo, and what part was for the tenant, Club V.

[48] However, there is some indirect evidence that the emergency repair work referred to in the authorization form was completed by Winmar by May 2, 2014 at the latest. Granite’s report to Intact on that date states that “Winmar Restoration initially completed the emergency repairs and stabilized the property” and that “Rochon Engineering has completed the structural assessment. They noted there are no further emergency repairs required to properly stabilize the property.” There is no evidence of a second agreement or authorization expanding the scope of work Winmar was to perform, although the report also indicates that Granite planned to secure bids from three contractors, including Winmar, per the insurer’s instructions.

[49] There is also no evidence whatsoever as to what work Winmar allegedly did, if any, during the period from May 23 to August 1, 2014. As noted above, Winmar's witness had no recollection of the work completed during that period. The estimates and the time cards that would have shown and described the work done have not been produced. There is no evidence as to what part of that work would be work for which Lixo could be held liable.

Lixo does not hold any monies in trust for Winmar

[50] Winmar's Statement of Claim does not allege that Lixo is holding monies in trust for Winmar.

[51] Winmar's notice of motion seeks payment for work allegedly done at the Premises. The notice of motion does not seek payment of monies that Lixo holds in trust for Winmar.

[52] It is submitted that it is not open to Granite or Winmar to argue the issue on this motion. I agree.

[53] Had the relief been sought in the Statement of Claim or in the Notice of Motion, Lixo would have provided evidence of losses it had as a result of the fire. In its separate action against Intact, Lixo claims $5,000,000. Any payment that Intact made to Lixo is far less than the loss as a result of the fire. Lixo submits that any amount to be paid to Winmar would decrease the insurance monies otherwise available to Lixo to cover its other losses, which were substantial.

[54] Finally, as the bulk of the work Winmar performed was related to the fire claim and was not done for Lixo, but for Club V, payment for that work should not come from Lixo's insurance coverage, thus decreasing the amounts that would otherwise be available to Lixo to cover its extensive losses.

[55] I agree with Lixo that this Court should not order it to pay Winmar any portion of the monies Lixo received from Intact.

Winmar’s Motion for Summary Judgment

[56] In its motion for Summary Judgment, Winmar has the burden of proof. To succeed, Winmar must introduce enough evidence to support a finding as to what, where and when Winmar performed work as well as the amount it is owed for the work it performed. The evidence before the Court, which I have referred to above, does not meet Winmar’s burden to prove that any of the defendants are liable to pay it for the amounts claimed.

[57] Winmar was not able to prove on these motions what work it performed, nor when and where it did so. Nor has it proven that payment is due for the work that has been performed. On that basis alone, Winmar’s motion against all of the defendants must fail. Further, Lixo has not brought its own motion to dismiss Winmar’s claim.

[58] I agree that there are genuine issues that require a trial. These issues relate to what work was performed by Winmar, the scope of the contract, the timelines prescribed by the Act, and the quantum of work for which Lixo may be liable to Winmar.

[59] On these motions, however, Lixo has argued that there are genuine issues requiring a trial and has not denied that some work was performed and that they have some liability to Winmar. I therefore dismiss Winmar’s motion against Lixo as there are clearly issues requiring a trial, but do not dismiss the action as against Lixo.

[60] There is one further practical issue. The Supreme Court of Canada in Hryniak also held, at para. 78, that: “Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.”

[61] In my view, this is an appropriate case for me to follow the Supreme Court's direction. I must, however, qualify this to recognize the practical reality of our court's ability to schedule trials in a timely and expeditious manner. I will not be seized of this trial if the effect of my unavailability would be to delay the hearing of the trial between the parties. If it is possible to do so without adverse delay or consequences to the parties, I seize myself of the trial of this matter as directed by the Supreme Court of Canada.

Granite and Intact’s Motion to Dismiss Winmar’s Action

[62] The Defendants, Granite and Intact, bring motions for summary judgment dismissing the action on the basis that there was no contract between Winmar and Granite and/or Intact and that there is no tenable cause of action in unjust enrichment or quantum meruit.

[63] Further, they submit that Winmar is precluded from continuing its motion without leave, as it has already delivered its Certificate of Trial Record.

[64] At para. 6 of its Updated Factum, Granite argues that:

(a) Winmar's action is pleaded as a breach of contract, under the Construction Lien Act and at common law, for unpaid work performed pursuant to a contract dated January 23, 2014, against an unspecified party ("Lixo and/or Intact and/or Granite Claims"). (b) Despite the shortcomings of that pleading, the evidence is uncontroverted that the contract Winmar entered into on January 23, 2014, was on a form presented by Winmar's employee, Byron Kent, to Lixo's property manager Allan Brown, for signature. No one other than Winmar and Lixo were parties to the contract. Kent did not expect the Granite insurance adjuster to sign it, unless he wanted to witness Mr. Brown's signature. (c) At the time the motions were heard on June 6, 2016, Winmar had raised numerous theories or grievances about the interactions among the parties, none of which established an enforceable legal basis for the claim against Intact or Granite. The two-year limitation period for pleading such issues having prescribed on August 1, 2016, the only facts that are now relevant are those that Winmar has pleaded and set down for trial, i.e. breach of the January 23, 2014, contract, as well as its alternative claims for quantum meruit and unjust enrichment arising from that contract. (d) The live issue between the two contracting parties, i.e. Winmar and the owner Lixo, is the scope of the work Lixo agreed to authorize Winmar to perform for under the January 23, 2014, contract. (e) Winmar has pleaded an incorrect expansion of the meaning of "owner" for the purposes of the statutory cause of action, to try to rope Intact and Granite into the lien claim. This is a pure question of law that can be resolved by a plain reading of the Construction Lien Act. It is also moot on the facts, because Winmar did not name Intact or Granite as owners in the Claim for Lien. (f) The claims for unjust enrichment and quantum meruit against Lixo are valid, because Intact paid the indemnity but Lixo has not paid Winmar. This is the type of contractor-owner dispute for which the statute was intended to provide a summary remedy. As against Intact and Granite, however, neither have gained anything from Winmar's work and so there is no cause of action. (g) Even if the claims for unjust enrichment and quantum meruit could be advanced [against] parties who did not gain any benefit from the work, the trial judge would lack the jurisdiction to consider these claims where the contract was only between Winmar and Lixo: Yorkwest Plumbing v. Nortown Plumbing (1998) Ltd., 2016 ONCA 305, 131 O.R. (3d) 149 [“Yorkwest Plumbing”].

[65] Intact agrees with the above submissions.

[66] Granite and Intact submit that there is no legal basis for Winmar’s action against them. Granite emphasizes at para. 6 of its Updated Factum that “it was only acting as agent for Intact, with the sole purpose of ensuring that the indemnity payments to Lixo were for the correct amounts under the insurance policy.”

[67] In addition to my findings set out above, I agree with these submissions. Winmar has pleaded only the "Agreement" entered into on January 23, 2014. The only parties to that agreement were Winmar and Lixo. Counsel for Winmar has acknowledged that there was no separate agreement with Intact or Granite. There is no legal basis for justifying an award requiring Granite or Intact to pay Winmar pursuant to a contract with a third party.

[68] Further, Intact and Granite submit that neither party gained any benefit from the work.

[69] As well, they argue that the Act confers no jurisdiction over the subject matter as against Granite or Intact, because they are not parties to the statutory contract giving rise to the lien. Moreover, since neither Granite nor Intact are “owners” as defined by the Act, this action must be dismissed.

[70] A lien on a property in which neither defendant has a proprietary interest is outside the intended scope of the statute: Bird Construction Co. Ltd. v. Ownix Developments Ltd. (1981), 125 D.L.R. (3d) 680 (C.A.) at p. 685, citing Sanderson Pearcy v. Foster (1923), 53 O.L.R. 519 (C.A.). I agree.

[71] With respect to any claim for quantum meruit, Intact and Granite submit that Part VIII of the Act, section 55(1) allows the joinder with a lien claim of a claim for breach of contract. They submit that in Yorkwest Plumbing, the Court of Appeal held that the statutory jurisdiction of the Superior Court does not include claims for quantum meruit or unjust enrichment. I agree with this submission as well.

[72] Finally, the time for Winmar to issue a regular Superior Court action expired on August 1, 2016, which was the second anniversary of Winmar's last pleaded performance of work at the property. I agree.

[73] Applying the Supreme Court of Canada’s roadmap referred to above, I must ask myself the following: 1) Just on the basis of the evidentiary record alone, are there genuine issues that require a trial? 2) Does the evidentiary record in front of me provide me with the evidence I need to “fairly and justly adjudicate the dispute”?

[74] I find that as against Granite and Intact, there are no issues requiring a trial and that I can fairly and justly adjudicate these disputes and dismiss Winmar’s claims against Granite and Intact for all of the reasons I have referred to above. I therefore grant Granite and Intact’s motions for summary judgment to dismiss the claims against them.

Costs

[75] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants, Intact Insurance Company Intact Compagnie D’Assurance and Granite Claims Solutions LP Intact, submissions are to be delivered by 12:00 p.m. on May 10, 2017, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on May 17, 2017. Any reply submissions are to be delivered by 12:00 p.m. on May 24, 2017.

Pollak J. Date: May 2, 2017