Heerkens v Lindsay Agricultural Society, 2017 ONSC 240

Court File and Parties

COURT FILE NO.: 12-55633 DATE: 2017/01/11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Frank Heerkens Plaintiff – and – Lindsay Agricultural Society Defendant

Counsel: Martin Diegel, for the Plaintiff David Contant, for the Defendant

HEARD: January 21, 2016

RULING ON MOTION FOR SUMMARY JUDGMENT

CORTHORN J.

Introduction

1In 2007, Dundas Power Line Ltd. (“DPL” or “Dundas”) commenced electrical service work for the defendant (the “Society”) with respect to improvements to the Lindsay Agricultural Society Fairgrounds (the “Fairgrounds”). DPL has not been paid for that work. In this action, the plaintiff (“Heerkens”) seeks to recover monies owed to DPL. The claim, as currently plead, is based solely in breach of contract. Heerkens is one of the principals of DPL and, in the proposed amended pleading, alleges that he is the assignee of DPL’s rights.

2The defendant brings this motion for summary judgment on the basis of a limitation period defence. The action was commenced in October 2012. The defendant’s position is that the limitation period expired in January 2011, at the latest, and the action is statute-barred by operation of sections 4 and 5 of the Limitations Act, 2002. [1]

3In response to the motion for summary judgment, Heerkens seeks leave to amend his pleading by:

a) Adding DPL as a plaintiff;

b) Including allegations on behalf of DPL in support of a claim based in unjust enrichment;

c) Identifying that Heerkens is the assignee of DPL;

d) Including allegations in support of an assignment made by DPL to Heerkens with respect to $350,000 said to be owing by the Society to DPL; and

e) Adding to the prayer for relief a request for declaratory relief with respect to:

i) DPL’s claim based in unjust enrichment; and

ii) A claim on behalf of both Heerkens and DPL to a 25 percent interest in the Fairgrounds property. [2]

4Heerkens’ position with respect to the motion for summary judgment is that a number of issues are not capable of determination on the motion; the following issues require a trial:

1. Was there an implied contract between DPL and the Society with respect to the work carried out by DPL in response to Contemplated Change Notice #3? [3]

• Heerkens’ position is that there is no evidence to support a finding of an implied contract. In any event, the existence or absence of an implied contract is an issue that requires a trial.
• The Society submits that the Court is, based on the evidence before it on the motion for summary judgment, in a position to determine whether there was a contract and, if so, the terms of the contract.

2. What limitation period applies to the action?

• DPL’s position is that because its claim is based in unjust enrichment, the limitation period applicable to the claim on behalf of DPL is ten years pursuant to section 4 of the Real Property Limitations Act. [4]
• The Society’s position is that the applicable limitation period is two years, as prescribed by sections 4 and 5 of the Limitations Act, 2002.

The Evidence

5The evidence filed on the motion includes two affidavits sworn by Andy Letham (“Letham”), [5] formerly a General Manager of the Society, and an affidavit sworn by Heerkens (the “Heerkens Affidavit”). Heerkens relies on his affidavit both in response to the motion for summary judgment and in support of the cross-motion for leave to amend the statement of claim. With respect to the former, the affidavit is personal to Heerkens. With respect to the latter, Heerkens’ evidence is in his capacity as an authorized representative of DPL.

6Each of the affiants was cross-examined. The transcripts of the cross-examinations are included in the record (the “Record”) before the Court. [6] In the transcript from the cross-examination of Letham, there is reference to his examination for discovery having already taken place. The transcript from the examination for discovery of Letham is not included in the Record. The transcript from the examination for discovery of Heerkens is included in the Record. [7]

7When the motion for summary judgment and the plaintiff’s cross-motion for leave to amend the pleading were argued, it was clear that a number of documents to which the parties made reference were not included in the various records filed. Counsel for the parties agreed that the documents would form part of the Record without the requirement for additional affidavit evidence. The documents were subsequently filed with the Court. They are referred to below as part of the supplementary materials filed by the defendant.

8Two of the individuals who were involved in the work at the Fairgrounds are deceased. They are (a) Jim Greenwood (“Greenwood”), the engineer with Greer Galloway Group Inc. (“Greer Galloway”), the firm acting as Project Manager, and (b) Tom Saunders (“Saunders”), the General Manager of the Society in 2007 and throughout part of 2008. Heerkens, on behalf of DPL, dealt with both Saunders and Greenwood with respect to the work at the Fairgrounds.

9Letham was hired as General Manager of the Society in January 2008. By that date, Saunders had left the employ of the Society. In late 2014, Letham left his position as the General Manager of the Society. He was elected as the Mayor of Kawartha Lakes in December 2015.

10For the purposes of the summary judgment motion, the defendant is prepared to accept and rely only on the evidence of Heerkens. Taking that position into consideration, the defendant submits that:

a) The evidence upon which to determine any issue will not improve between the summary judgment motion and trial;

b) There will be no other evidence presented at trial that is not available to the Court at this time; and

c) There is no need to address credibility — the defendant accepts and relies on the evidence of Heerkens in its entirety.

Chronology

11In early 2007, the Society decided to undertake improvements to the Fairgrounds, located in Lindsay, Ontario. The improvements involved the construction of a number of fairground buildings, along with the supply and installation of electrical site services.

12Set out below is a chronology of the events from June 2007, when DPL bid on the work to be done at the Fairgrounds, to October 2012, when the statement of claim was issued. The chronology is based on Heerkens’ evidence and on Letham’s evidence, the latter to the extent that it is not contradicted by Heerkens’ evidence.

June 20, 2007 DPL submits a bid to provide electrical service to the new site for the Fairgrounds. The Society’s annual fair is scheduled for September 2007. The bid is submitted to Greer Galloway. [8] The bid identifies a “Lump Sum Total” of $834,625. [9]

June 21, 2007 The Society accepts the DPL bid. Saunders sends an e-mail to Greer Galloway confirming the Society’s acceptance of the bid and requesting that DPL “proceed with the work as soon as possible.” [10]

June 25, 2007 Greer Galloway sends a letter to DPL informing DPL of the Society’s acceptance of the bid. In their letter, Greer Galloway says, “please be advised that the Agricultural Society has accepted your lump sum price of $834,625.00 + GST.” DPL is asked to provide the requisite insurance information for inclusion in the Contract Document and advised that DPL will, thereafter, be provided with the Contract Document for signature. [11]

July 19, 2007 Greer Galloway sends Contemplated Change Notice #1 (“CCN #1”) to DPL. The notice addresses three proposed changes to the contract for the Fairgrounds project.

July 23, 2007 Change Order #1 is issued by DPL and signed by Saunders on behalf of the Society, the latter as evidence of the Society’s approval for the work to be done. As outlined by DPL in Change Order #1, there is no additional charge for the work. The contract price set out in Change Order #1 remains, as it was in the bid submitted, $834,625. [12]

Aug. 10, 2007 Change Order #2 is issued by DPL and signed by Saunders on behalf of the Society, the latter as evidence of the Society’s approval of the work to be done at an additional cost of $4,800 set by DPL. [13]

Sept. 6, 2007 Greer Galloway prepares CCN #3. The notice lists 22 items of additional work for which the Society is seeking an itemized statement and schedule (the “Work”). [14]

Sept. 7, 2007 Greenwood leaves CCN #3 on Heerkens’ desk and says, “This is the changes [ sic ] that need to be done.” [15] DPL does not issue a Change Order #3 in response to CCN #3. DPL commences the Work without first receiving a Change Order #3 signed by both the Project Manager and the Society.

Sept. 12, 2007 Greer Galloway sends to the Society a letter enclosing an invoice from DPL in the amount of $437,623.65. The Society issues a cheque payable to DPL for that amount. [16]

Apr. 2008 The Society obtains a mortgage in the amount of $2,200,000 to pay creditors, including individuals and companies to whom it owes money, for work done on the Fairgrounds.

June 24, 2008 DPL sends the Society invoices, dated 2008 and totalling $394,695, copies of Change Orders #1 and #2 (the latter in the amount of $4,800), and a copy of CCN #3. In the related cover, Heerkens in his capacity as principal of DPL, says that DPL wants payment of the “original contract” so that can pay the subcontractors engaged by DPL. Again, on behalf of DPL, Heerkens identifies in the letter that there remain 22 items from “Change order (3)” to be addressed and charged out. [17]

June 26, 2008 The Society issues a cheque payable to DPL in the amount of $423,319.85. [18]

Oct. 2008 DPL sends the Society an invoice in the amount of $23,230.27. A cheque is issued by the Society payable to DPL. The cheque is identified as for “balance of contract less repairs”. [19]

Dec. 2008 DPL sends the Society two invoices from DPL’s sub-contractor for “the extra inside electrical work” done by the sub-contractor, under the supervision of DPL, as per CCN #3. The invoices total $189,593.61. They are said to relate to 11 of the 22 items identified in CCN #3. The letter states that a copy of DPL’s invoice for the Work is also enclosed. A copy of that invoice is not included with the copy of the letter in the Record. [20]

Jan. 2009 DPL provides the Society with a “labour and material breakdown for each subsection of change order notice #3”. The total for the labour and material is $369,898. [21]

Feb. 2009 Letham sends an e-mail to Heerkens advising that he does not have a copy of a “Change Order #3”, anything advising the Society of costs for the work contemplated by CCN #3, or any authorization from the Society to DPL for the latter to carry out that work. [22]

Mar. 2009 DPL’s request for payment of work done with respect to CCN #3 is brought before a meeting of Board of Directors of the Society. The basis of the claim and the payment proposal received from DPL are discussed. [23]

Apr. 2009 Heerkens sends a letter, on behalf of DPL, to the Society in which he references a “tentative agreement” reached between Heerkens and Letham as to the terms pursuant to which the Society would pay DPL the sum of $350,000 in full satisfaction of its invoice for the work related to CCN #3. [24]

May 15, 2009 Letham sends an e-mail to Heerkens with questions in response to the April 2009 letter sent by DPL to the Society.

Sept. 14, 2010 DPL purports to make an assignment to Heerkens. An entry is made in the General Ledger of DPL reflecting the payment of $50,000 by Heerkens as consideration for the purported assignment.

2010 to 2012 Heerkens and Letham continue to have discussions with respect to DPL’s request for payment for the work done pursuant to CCN #3.

Jan. 2012 The Society requests that DPL provide copies of invoices from the sub-contractor (Ford Electric) who assisted DPL with the work pursuant to CCN #3 and that DPL answer questions with respect to those invoices.

Jan. 26, 2012 DPL sends the Society the invoices from the sub-contractor as requested. This e-mail is the first response from Heerkens to the May 15, 2009 e-mail from Letham to Heerkens referred to above.

Feb. 9, 2012 DPL sends additional documents to the Society in support of the request that the Society pay for work done.

Mar. 1, 2012 In a letter sent to the Society, Heerkens proposes two different payment options for the Society to consider. [25]

Apr. 20, 2012 The Society responds by way of a letter and advises Heerkens that having reviewed his proposal for payment and having considered the matter, “no further action is contemplated at this time.” [26]

May 2012 Heerkens asks for and is refused the opportunity to attend a meeting of the Board of Directors of the Society. [27]

Oct. 2, 2012 The statement of claim is issued.

The Issues

13The parties agree that a preliminary issue to be determined is whether a contract exists between the Society and DPL for the Work. If such an express or implied contract exists, then the contract is a bar to the proposed claim on behalf of DPL based in unjust enrichment.

14The issues to be determined thereafter are as follows:

1. Is Heerkens entitled to leave to amend the statement of claim and, if so, to what extent?

2. Regardless of the amendments, if any, made to the statement of claim, is the Society entitled to summary judgment dismissing the claim because the action was commenced after the expiration of the limitation period applicable to this claim?

Motion for Summary Judgment

15The motion by the defendants for summary judgment is made pursuant to Rule 20 of the Rules of Civil Procedure. [28] Pursuant to sub-rule 20.01(3), a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

16The moving party bears the onus of proving there is no genuine issue requiring a trial. If the moving party demonstrates a prima facie right to summary judgment then the burden of proof shifts and the responding party bears the onus of demonstrating that there is a genuine issue requiring a trial. [29]

17The framework for determination of motions for summary judgment has evolved because of recent amendments to the Rules of Civil Procedure, including to Rule 20. In addition, the Supreme Court of Canada in Hryniak v. Mauldin [30] established key principles to be followed in the context of a cultural shift mandated by the decision. The cultural shift to be made is the recognition by parties, lawyers, and judges alike “that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.” [31]

18As stated by the Supreme Court of Canada:

Summary judgment must be granted whenever there is no genuine issue requiring a trial.

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result. [32]

19At paragraph 66 of Hryniak, the Supreme Court of Canada set out the approach to be taken by the judge on a motion for summary judgment. The first step on a motion for summary judgment is for the judge to determine, based only on the evidence before the judge and without using the expanded fact-finding powers, [33] whether there is a genuine issue requiring a trial.

20If, based only on the record before the judge, there appears to be a genuine issue requiring a trial, the judge must then determine whether the requirement for a trial may be avoided by the exercise of the expanded fact-finding powers. Those powers may be exercised, in the discretion of the judge hearing the motion, provided that the exercise of those powers does not run contrary to the interests of justice. The interests of justice will be served if the exercise of those powers will lead to a fair and just result and serve the goals of timeliness, affordability, and proportionality in the context of the case as a whole. [34]

21With respect to the preliminary issue, I agree with the defendant and find that there is no genuine issue that requires a trial. I am in a position to determine that issue on the basis of the evidence in the Record.

22I find that whether the action is statute-barred by reason of the expiration of the applicable limitation period is a genuine issue that requires a trial. However, I find that a trial of that issue can be avoided by the exercise of the expanded fact-finding powers available pursuant to Rule 20.

23I choose to exercise my discretion and apply the expanded fact-finding powers to determine the limitation period issue. I do so for the following reasons.

24In determining the limitation period issue, the only expanded fact-finding power that I have applied is the ability to draw an inference. The inferences I am required to draw are few in number and are based exclusively on Heerkens’ evidence. His evidence is presented by way of affidavit and as available from the transcripts of his examination for discovery and cross-examination on his affidavit. The Record includes extensive evidence upon which there would be little, if any, improvement at trial.

25In the reasons which follow, I identify where an inference has been drawn. My reasons are otherwise based on the evidence in the Record.

26Given that the Society is prepared to rely exclusively on Heerkens’ evidence, I am not required to weigh his evidence against Letham’s evidence where there is a conflict in their evidence. In any event, I have not relied on any of Letham’s evidence that conflicts with or is contradictory to Heerkens’ evidence. I am not required to assess the credibility of either Heerkens or Letham.

27The exercise of the expanded fact-finding powers is in the interests of justice as between the parties to this action. There has, in my view, been a significant amount of work done on behalf of the parties to date. The steps in which the parties have participated include the exchange of pleadings, the discovery process, the motion for summary judgment, and the cross-motion for leave to amend the statement of claim.

28The monetary amount involved is $350,000. That amount is no doubt significant to each of Heerkens, DPL, and the Society. In my view, to require the parties to proceed to trial with respect to the limitation issue would result in them incurring costs which, in their totality, are disproportionate to the monetary amount involved.

29A trial date, even if set now, would likely be many months away and could possibly be in 2018. The matter has been ongoing for almost a decade (if when the Society first put the work on the Fairgrounds out for tender is used as the starting point). I see no reason to delay a determination of the limitation issue.

Disposition

30The plaintiff’s cross-motion for leave to amend the statement of claim is allowed in part. However, the amendments allowed are minimal and do not result in any change to the substance of the statement of claim as issued:

• DPL is not added as a party to the action.
• The assignment, if any, between DPL and Heerkens is not “effectual in law” within the meaning of section 53(1) of the Conveyancing and Law of Property Act. [35] No amendments related to the assignment are allowed.
• There is an implied contract between DPL and the Society for the Work. The existence of that contract and the availability to DPL of the remedies pursuant to the Construction Lien Act [36] are each a juristic reason why DPL is precluded from advancing a claim based on unjust enrichment. No amendment related to such a claim is allowed.

31In the absence of an assignment that is effectual in law, Heerkens does not have a claim against the Society. On that basis, the action is dismissed in its entirety.

32If, however, I am incorrect with respect to the issue of an assignment, I find that Heerkens’ claim is restricted to a claim based in breach of contract. Given that DPL was (and is) not in a position to assert a claim based on unjust enrichment, it was not in a position, in September 2010 when the assignment is alleged to have been made, to assign to a claim based in unjust enrichment.

33The claim based in breach of contract is subject to the two-year limitation period prescribed by sections 4 and 5 of the Limitations Act, 2002. The limitation period began to run in January 2009. The statement of claim was issued in October 2012. The action is statute-barred and is dismissed in its entirety.

Preliminary Issue

a) Positions of the Parties

34The parties agree that the events as they occurred in September 2007 with respect to CCN #3 (the “Events”) do not constitute an amendment to the original contract.

35The plaintiff’s position is that the Events do not give rise to an implied contract for the Work. The plaintiff submits that Saunders was not authorized by the Society to enter into a contract on its behalf with DPL for the Work. There being no amendment to the original contract and no other implied contract, there is no juristic reason to preclude DPL from asserting a claim based in unjust enrichment.

36The defendant admits that in September 2007 Saunders told Heerkens to “get her done” — meaning the Work. The defendant also admits that Saunders had the authority to bind the Society to a contract with DPL for the Work. The defendant’s position is that the terms of the contract entered into at that time include an implied promise by the Society to pay a reasonable sum for the Work. The Society argues that the existence of this separate contract is a juristic reason why DPL is precluded from advancing a claim based in unjust enrichment.

b) Analysis

37The material facts are not in dispute. In September 2007, DPL was presented with a demand for a significant amount of work, not contemplated as part of the original contract, to be done. DPL was told by the Society’s representative to get the Work done. The importance of the Work to the success of the upcoming fair and of the completion of the Work in short order was made clear by Saunders to Heerkens, the latter in his capacity as a principal of DPL.

38A copy of the contract for the entire Fairgrounds project (the “Contract Document”) is not included in the Record. The parties agree that the Contract Document does not include a provision with respect to “Extras”.

39I find that prior to September 2007 the parties addressed Extras using a process of Contemplated Change Notices and Change Orders. I also find that the parties did not rely on that process with respect to the Work.

40In September 2007, DPL received CCN #3. DPL did not prepare a Change Order in response to CCN #3, as it had in response to each of CCN #1 and CCN #2. Instead, DPL commenced the Work on the basis of (a) the scope of the work outlined in CCN #3, and (b) the request by Saunders, on behalf of the Society, to commence the Work immediately and to complete it in a timely manner.

41By the date on which DPL commenced the Work, it had completed several hundred thousands of dollars of work pursuant to the Contract Document. On September 12, 2007 – five days after DPL was asked to do the Work – a DPL invoice was sent to the Society in the amount of $423,625 for work done pursuant to the Contract Document and Change Orders #1 and #2. The invoice was paid immediately.

42It is open to the Court, in the absence of an agreement as to the price to be paid for the Work, to impose on the Society an obligation to pay a reasonable sum for the Work. [37] I agree with the Society that it would be unreasonable for it to demand that the Work be done, observe the Work being done, and not expect to pay a reasonable amount for the Work. It would be equally unreasonable for DPL to commence and carry out the Work, valued at several hundreds of thousands of dollars, and not expect to be paid for it. [38]

43Based on the evidence in the Record, I find that the preliminary issue is not a genuine issue that requires a trial. I am in a position to determine the preliminary issue on the motion for summary judgment.

44I find as follows with respect to the terms pursuant to which the Work was done:

• DPL was not obliged by either the Contract Document or the Contemplated Change Notice and Change Order process to carry out the Work.
• The Events resulted in a separate contract between DPL and the Society (the “Contract”).
• The terms of the Contract include that the Work would be done as itemized in CCN #3 and without delay.
• When DPL commenced the Work it did so on the understanding that it would be paid a reasonable amount for the Work.
• The Society expected that it would pay a reasonable sum for the Work.
• Thus, the Contract includes an implied term that DPL was to be paid a reasonable sum for the Work.

45I agree with the Society and find that the only contract between it and DPL with respect to the Work is the one summarized above. The amount to be paid by the Society to DPL and the payment terms, once agreed upon, were not intended to be the subject of a separate contract. The “separate” contract upon which Heerkens and DPL seek to rely is discussed below in the Limitation Period section of this Ruling.

Issue No. 1 : Leave to Amend

46There are two elements to the proposed amendments: (a) the addition of DPL as a plaintiff and the claims advanced on its behalf, and (b) the amendments with respect to Heerkens’ claims.

47The cross-motion for leave to amend the statement of claim must be determined in the context of a factual matrix that includes the existence of the Contract, and the implied term of the Contract that DPL is to be paid a reasonable sum for the Work.

48The general power of the court to grant a party leave to amend their pleading is set out in rule 26.01of the Rules of Civil Procedure as follows, “[o]n motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” This general power is applicable to both elements of the proposed amendments − the addition of DPL as a party and the claims asserted on its behalf and the amendments to the claims asserted by Heerkens.

49Despite the mandatory nature of the wording of rule 26.01 of the Rules of Civil Procedure, on a motion for leave to amend the statement of claim in the manner requested on behalf of DPL, it is incumbent upon the Court to consider whether the proposed amendments disclose “no reasonable cause of action”. In assessing whether the proposed claims are tenable, the Court is to apply the principles developed with respect to rule 21.01(1) (b) of the Rules of Civil Procedure. [39] Rule 21.01(1)(b) applies to motions for determination of an issue of law – in particular on a motion to strike out a pleading because it discloses no reasonable cause of action.

50With respect to the request for leave to add DPL as a plaintiff, consideration must also be given to rule 5.04(2) of the Rules of Civil Procedure. That rule addresses the addition, deletion, or substitution of parties and provides, “[a]t any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

a) Adding DPL as a Plaintiff

51Leave is sought to amend the statement of claim to add DPL as a party and to include in the prayer for relief a request by DPL for a declaration that the Society “has been unjustly enriched by the work done by [DPL]…and that the work done exceeds $500,000”. [40]

52The proposed amended prayer for relief also includes a request for a declaration that both Heerkens and DPL “have [a 25 percent] interest in the…Lindsay Fairgrounds.” [41] The proposed amendments include the following allegations with respect to the interest in lands:

8. The Plaintiffs state and the fact is that had Dundas and Frank Heerkens not been misled or mistaken about eventually getting paid, then Dundas would have liened the lands under the Construction Lien Act, and thereby acquired an interest in the lands under the said Act .

9. Given that the Defendant cannot or will not pay, and has no assets of consequence, other than the fairgrounds, the Plaintiffs require an interest in the land in order to deal with the unjust enrichment is [ sic ] pursued by way of a constructive trust.

53In this section of my Ruling, I consider the proposed amendments quoted immediately above only as they relate to DPL. The same proposed amendments as they relate to Heerkens are discussed below.

54The existence of a contract is a juristic reason that precludes DPL from advancing a claim of unjust enrichment. [42] Given my finding that DPL and the Society entered into the Contract for the Work, including the implied term that a reasonable sum would be paid for the Work, a claim based in unjust enrichment is not available to DPL.

55There is, in my view, a second juristic reason why a claim in unjust enrichment is not available to DPL. It was open to DPL to register a lien pursuant to the Construction Lien Act (“the CLA ”). [43] There is no evidence to suggest that DPL did not have the ability to register a lien with respect to the amount owed by the Society for the Work. Heerkens acknowledges that by 2008, when he was dealing with Letham, there was nothing to prevent DPL from placing a construction lien on the title to the Fairgrounds property.

56It is clear from the Record that Heerkens had many years of experience in business. Based on that experience and the availability of the construction lien process, I find that the allegations made in paragraph 8 of the proposed amended pleading do not disclose a reasonable cause of action.

57I agree with the Society that DPL’s failure to follow the provisions of the CLA cannot be overlooked. To permit DPL to proceed with a claim based in unjust enrichment would be to allow DPL to (a) circumvent the “orderly system” created by the CLA , and (b) indirectly enforce a claim that is now, by reason of the passage of time, invalid. [44]

58In summary, there are juristic reasons for why DPL is not entitled to assert a claim based in unjust enrichment. Unjust enrichment is the sole basis for the claim on behalf of DPL. In the circumstances of this case, there is no reasonable cause of action on behalf of DPL. The cross-motion for leave to amend the statement of claim to add DPL as a plaintiff, to include a request for declaratory and other relief related to a claim based in unjust enrichment, and to add to the body of the statement of claim allegations in support of a claim based in unjust enrichment is dismissed.

b) Heerkens

59At present, the only claim asserted on behalf of Heerkens is for the payment of $350,000 by the Society based on an agreement allegedly reached in 2009 between the Society and DPL. In addition, it is alleged that DPL and the Society were in the process of negotiating a separate agreement related exclusively to the terms of payment of $350,000 when, in April 2012, the Society effectively walked away from those negotiations leaving the terms of the agreement unresolved.

60Heerkens seeks leave to amend the statement of claim to:

a) Add a request for a declaration that he is entitled to a 25 percent interest in the Lindsay Fairgrounds;

b) Identify that the request for payment to him by the Society of the $350,000 is made in his capacity as the assignee of DPL’s rights; and

c) Include allegations that an assignment was made between DPL and Heerkens in September 2010 (the “Alleged Assignment”).

61There is minimal reference to the Alleged Assignment, as such, in the statement of claim. The relief requested in paragraph 1(a) of the statement of claim is for “[p]ayment of the amount of $350,000.00 on account of outstanding invoices for work performed by [DPL] to the benefit of the Defendant and assigned to the Plaintiff”. Heerkens seeks leave to amend that portion of the prayer for relief to read as follows:

In the alternative , payment of the amount of $350,000.00 on account of outstanding invoices for work performed by [DPL] to the benefit of the Defendant and as agreed by the Defendant and then assigned to the Plaintiff Frank Heerkens.

62In the substantive portion of the statement of claim there is reference to Heerkens having purchased from DPL the $350,000 receivable with the Society. Paragraph 9 of the statement of claim, as issued, reads as follows:

The Plaintiff states and the fact is that the Defendant indicated to Dundas that it required time to pay which the parties agreed would be accomplished through a sale of the said receivable to Frank Heerkens who would provide time to pay. Consequently, from 2010 to 2012, Frank Heerkens, who controls Dundas, discussed the matter of time to pay and payment with the Defendant. [45]

63Heerkens seeks leave to amend that paragraph to read as follows:

The Plaintiff s state and the fact is that the Defendant indicated to Dundas that it required time to pay which the parties agreed would be accomplished through a transfer of rights to Frank who would provide time to pay. Consequently, from September 2010 (when Frank acquired an Assignment of the rights) to 2012, Frank discussed the matter of time to pay and payment with the Defendant. [46]

64There is nothing in the proposed amended pleading to particularize what is meant by “the rights”. There is minimal evidence, documentary or otherwise, in the Record to identify the nature of the Alleged Assignment.

65Attached as exhibit ‘A’ to the Heerkens Affidavit is an untitled document which reads, in its entirety, as follows:

Dundas assigns its interests in the work and receivables in regard to the Lindsay Fairgrounds to Frank Heerkens in consideration of the payment of $50,000.00 made September 14, 2010.

Dated as at September 14, 2010

DUNDAS POWER LINE LTD.

Frank Heerkens

Per: Frank Heerkens

66In his affidavit, Heerkens explains the origins of the document. His evidence is that “[w]e have been unable to locate the document which was done at that time, hence it has been redone and is attached as Exhibit “A” to this my Affidavit”. [47] The only evidence of the Alleged Assignment contemporaneous with the transaction is an entry in the DPL General Ledger in which reference is made to $50,000 paid by Heerkens to DPL for the receivable owing by the Society.

67Heerkens’ evidence is that during his discussions with Letham on behalf of the Society, Letham inquired whether the Society was in discussion with the correct person (i.e., Heerkens) given that the Work was done by DPL. Heerkens’ belief is that the Society wanted to be certain that if a deal was reached with Heerkens, DPL would not at a later date come back to the Society for payment of the amount for which the Society was negotiating with Heerkens. In response to that concern, Heerkens said he would purchase “the bad debt assets” from DPL, so that the receivable would be in Heerkens’ name and not in DPL’s name.

68During cross-examination of Heerkens, counsel for the Society addressed the issue of the claim based in unjust enrichment and questioned how DPL could now maintain an action based in unjust enrichment if it had assigned all of its rights to Heerkens. The inquiry arose in the context of a discussion as to what has been assigned — all of DPL’s rights or simply the right to collect the money owed by the Society. In response to that inquiry, counsel for Heerkens said that DPL will “make an absolute assignment of all its unjust enrichment rights.” Once again, the only evidence of the Alleged Assignment is the document referred to and quoted in paragraph 40, above.

69There are a number of problems with the evidence with respect to the Alleged Assignment and the manner in which it is addressed in the proposed amended pleading. Those problems include the following:

• Given the ownership structure of DPL (Heerkens and a holding company), did Heerkens alone have the authority to make the Alleged Assignment? There is no evidence as to how DPL was authorized to make the Alleged Assignment.
• What was assigned — a receivable of $350,000 (or more); a claim in unjust enrichment; or both the receivable and a claim in unjust enrichment?
• There is no evidence that the Society was given written or any other notice of the Alleged Assignment.

70Based on the Society’s acceptance of Heerkens’ evidence, and despite the contradiction in Heerkens’ position as to what was assigned to him, the evidence supports and I make a finding that Heerkens purchased from DPL its receivable with the Society for the Work. In consideration of the payment of $50,000 DPL assigned to Heerkens its rights to pursue the Society for payment of that receivable.

71The timing of the purchase of the receivable provides further support for my finding that there was an implied term in the Contract for DPL to be paid a reasonable sum for the Work. There would be no reason for Heerkens to personally invest $50,000 as consideration for the Alleged Assignment if, as of September 2010 and in his capacity as a principal of DPL, he was uncertain as to what he was purchasing. Based on the many years of experience that Heerkens had in business, I draw an inference and find that in September 2010 he knew what he was paying $50,000 to DPL for − a receivable based on an invoice delivered in January 2009 in the amount of $369,000. [48]

72The receivable (i.e., the debt) purchased by Heerkens from DPL in 2010 falls within the definition of “property” within the meaning of section 1(1) of the Conveyancing and Law of Property Act (“ CLPA ”). [49] In that section, “property” is defined as including “real and personal property, a debt, a thing in action, and any other right or interest”.

73The purchase of the receivable (i.e., the Alleged Assignment) falls within the meaning of an “absolute assignment” in section 53(1) of the Conveyancing and Law of Property Act. That section provides as follows:

Any absolute assignment made on or after the 31st day of December, 1897, by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action of which express notice in writing has been given to the debtor , trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action is effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if this section had not been enacted, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor. [Emphasis added.]

74It is clear from section 53(1) of the CLPA that for the Alleged Assignment to be “effectual in law”, express notice in writing of it must have been given to the debtor. All that is required as “express notice” of an assignment is that the debtor should be given to understand that the debt has been made over by the creditor (DPL) to a third party (Heerkens). [50] There is no evidence of express notice in writing having been given to the Society of the Alleged Assignment.

75I find that the Alleged Assignment is not effectual in law. As a result, the proposed amendments based on the Alleged Assignment are not tenable. The cross-motion for leave to amend the statement of claim to add a request for declaratory relief with respect to a 25 percent interest in the land on the part of Heerkens, to identify Heerkens as the assignee of DPL, and to include allegations with respect to the Alleged Assignment is dismissed.

c) Balance of the Proposed Amendments

76A number of the proposed amendments do not address the substantive claims made (existing or proposed) and fall outside the scope of my reasons set out above. These remaining amendments serve to better particularize the existing claims (the “Particulars”).

77There is no evidence to support a finding that the Society would be prejudiced in any way that cannot be compensated for by costs or an adjournment if Heerkens is granted leave to amend the statement of claim to include the Particulars.

78Heerkens is therefore granted leave to amend the statement of claim as follows:

a) Paragraph 2 shall be amended to read as follows:

The Plaintiff, Frank Heerkens (hereinafter referred to as “Frank”), is an individual residing in Russell, Ontario and is a principal of Dundas Power Line Ltd. (hereinafter referred to as “Dundas”).

b) Paragraph 5 shall be amended to read as follows:

The Plaintiff states and the fact is that Dundas entered into an agreement in 2007 pursuant to a Tender prepared in 2006 and issued in 2007 for Dundas to provide labour and materials to the Defendant at its new site in Lindsay to bring the electrical utilities to the new site and erect all utility and lighting poles in accordance with the Tender. [51]

c) Paragraph 6 shall be amended to read as follows:

The Plaintiff states and the fact is that the work by Dundas commenced work in 2007 and that Dundas completed the main installations by the start of the fair in September of 2007 with the remainder being finished in 2008 .

d) Paragraph 15 shall be amended to read as follows:

The Plaintiff states and the fact is that it received correspondence dated April 20, 2012 was received advising that the Board of Directors had reviewed the proposal, taken the matter under consideration and advised that “no further action is contemplated at this time”.

d) Summary

79The plaintiff is granted leave to amend his statement of claim as set out in paragraph 78, above. The plaintiff’s cross-motion for leave to amend his statement of claim is otherwise dismissed.

Issue No. 2 : Limitation Period

a) Positions of the Parties

80The Society’s position is that the two-year limitation period pursuant to sections 4 and 5 of the Limitations Act, 2002 bars the claim for breach of contract, whether it is advanced by DPL or Heerkens, the latter as assignee of the receivable. The Society submits that January 2009 is the latest month in which it can be said that the two-year limitation period began to run. The Society points to a document received from DPL in that month in which DPL provided a detailed breakdown of the labour and materials totalling $369,000. On that basis, the two-year limitation period expired, at the latest, in January 2011. The action, having been commenced in October 2012, is thus statute-barred. The Society requests that Heerkens’ claim be dismissed in its entirety.

81Heerkens, in his capacity as the assignee of DPL, submits that the claim which he is advancing is subject to the ten-year limitation period prescribed by section 4 of the Real Property Limitations Act.

82Alternatively, Heerkens relies on the negotiations with respect to the alleged separate contract, dealing exclusively with the amount to be paid for the Work and the terms of payment. Heerkens takes the position that the separate contact was never finalised; as a result, none of the documents sent by DPL to the Society in 2008 or 2009 constitute an invoice for the Work. Heerkens submits that because DPL and the Society never reached an agreement with respect to the terms of payment, the two-year limitation period prescribed by the Limitations Act has not yet begun to run.

b) Statutory Provisions

83The Society relies on sections 4 and 5 of the Limitations Act, 2002. Those sections establish a “basic” two-year limitation period and define the related discoverability principle as follows:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

(3) For the purposes of sub-clause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.

84Heerkens relies on section 4 of the Real Property Limitations Act, which establishes a ten-year limitation period as follows:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

c) Analysis

85Copies of DPL invoices dated in 2007 (one invoice) and 2008 (three invoices) are included in the Record. Each invoice is a single page. The invoices range in dollar value from $20,000 to $486,248.50. The 2007 invoice was sent to the Society under cover of a letter from the Project Manager. Two invoices dated June 2008 were included under cover of a letter from DPL addressed to the Society.

86There is no evidence as to whether the third invoice sent in 2008 (October) was sent to the Society under cover of a letter from DPL or from the Project Manager. Given that, as of June 2008, DPL was sending invoices to the Society directly, I draw an inference and find that the October 2008 invoice was also sent by DPL directly to the Society.

87The DPL letter under cover of which two invoices dated June 2008 were sent includes the following paragraph:

Also enclosed please find change order numbers 1, 2 & 3 as completed by The Greer Galloway Group. All the work has been completed as per revised drawing #3 issued to us on August 6, 2007. Change order (3) has approximately 22 items to be addressed and charged out accordingly. At this time we would appreciate payment of the original contract to process our payment to contractors who have been patiently waiting to receive their funds. [52]

88The documents enclosed with the June 2008 the letter include copies of Change Orders # 1 and #2 and CCN #3. A copy of “Change order (3)”, to which reference is made in the June 2008 letter, is not included with the copy of the letter in the Record.

89In December 2008, DPL sent a letter to the Society which was enclosed copies of two invoices from Ford Electric. One invoice is dated August 30, 2007 and the other is dated March 31, 2008. The cover letter says the following:

The following is the extra inside electrical work done by Ford Electric under supervision by Dundas Power Line Ltd. as expressed in contemplated Change Notice #3 dated September 6, 2007 and reflected in Drawing #E-1 Rev #4 Addendum #3 date September 7, 2007. As stated to you in our June 24, 2008 letter the original contact [ sic ] has been meet [ sic ] in full and final payment for it was received by us October 10, 2008. Also stated in our letter of June 24, 2008 and in subsequent emails were the outstanding amounts of the change order 1.1 to 1.22. This invoice incorporates the following Notice #3 – 1.4, 1.6, 1.11, 1.12, 1.14, 1.16, 1.17, 1.18, 1.19, 1.21, & 1.22 for all inside wiring and dry core transformers. Enclosed are the copies of the subcontractor Ford Electric billing and our invoice for this work.

Invoice for the remaining outside underground work to follow next week with the amounts, size of cable, and trench lengths. [53]

90The Record includes copies of the December 2008 letter and of the Ford Electric invoices. The Record does not include a copy of the DPL invoice to which reference is made in the letter.

91Heerkens is the author of the letters referred to in paragraphs 86 and 87 above. Despite the fact that he refers at times to CCN #3 as a “change order”, I find that as of 2007, when he was discussing CCN #3 with Saunders, Heerkens knew the difference between a Contemplated Change Notice and a Change Order. I find that Heerkens’ references to CCN #3 as a “change order” are not the result of any misunderstanding on his part. My finding in that regard is based on an inference drawn that those references reflect a lack of attention to detail on Heerkens’ part with respect to documentation related to the Work.

92It is clear from the contents of the letters sent by DPL to the Society in June and December 2008 that Heerkens (who is the author of those letters) did not, for the purpose of a method of delivery of an invoice and expectation of payment of the invoice, distinguish between invoices for work done pursuant to Change Orders #1 and #2 and the invoice for the Work.

93I find as follows with respect to CCN #3, the Work, and the implied term pursuant to the Contract that DPL would be paid a reasonable sum for the Work. First, copies of Change Orders #1 and #2 were enclosed with the June 2008 letter. Also enclosed was a copy of CCN #3, even though Heerkens referred to it as a change order. I draw an inference and find that Heerkens knew that CCN #3 was not the same as Change Orders #1 and #2 and that CCN #3 was not being treated by DPL or by the Society as a change order. Once again, that inference is based on Heerkens’ lack of attention to detail when referencing or describing documents.

94Second, I draw an inference and find that when, in October 2008, Heerkens began corresponding on behalf of DPL with the Society to address payment for the Work, there was no uncertainty on his part personally or in his capacity as a principal of DPL, as to how the Work would be invoiced and how payment for the Work would be addressed. I draw that inference based on Heerkens’ experience in business and the manner in which he had to that point in time been dealing with invoices on behalf of DPL.

95In December 2008, DPL sent more documents to the Society, with Heerkens (as the author of the cover letter) once again referring to the documents as “invoices”. Reference was made in the December 2008 letter to an invoice from DPL and a copy of that invoice was said to be enclosed with the letter. A copy of that invoice is not in the Record. There is no evidence on the motion for summary judgment as to what that document was. The lack of a copy of that document does not affect the outcome of the motion for summary judgment.

96Included as exhibit “J” to the 2014 Letham Affidavit is a document on DPL letterhead dated January 21, 2009. The January 2009 document is not signed. Heerkens acknowledges that he sent the document to the Society. The document set out itemized material and labour costs for item numbers 1.2, 1.3, 1.7, 1.8, 1.9, 1.13, and 1.15. In addition, the cost of electrical work for item numbers 1.4, 1.6, 1.11, 1.12, 1.14, 1.16, 1.17, 1.18, 1.19, 1.21, and 1.22 was provided. The total for all labour, materials, and electrical work was $362,282.65. To that amount, GST of $17,615.00 was added for a grand total of $379,898.00.

97The January 2009 document is five pages in length and provides “our labour and material breakdown for each subsection of change order notice # 3”. I find the reference to a “change order notice” to reflect a lack of attention to detail on Heerkens’ part. It was not a deliberate attempt on his part to characterize CCN #3 as anything other than a Contemplated Change Notice.

98DPL was allowed a reasonable period of time within which to deliver an invoice for the Work. It was not entitled to delay unreasonably in the delivery of an invoice and it did not do so. I find that the January 2009 document constitutes a demand for payment which started the two-year limitation period running. [54]

99In summary, the two-year limitation period for the commencement of an action based in breach of contract began to run in January 2009, at the latest, when the detailed breakdown of labour and materials was sent by DPL to the Society.

100I agree with the Society and find that at no time did the Society acknowledge the debt orally or in writing. Even if it can be said that the discussions between Heerkens and Letham resulted in an oral acknowledgement of the debt, an oral acknowledgement is not sufficient to extend the date on which the limitation period began to run. [55]

101I turn to the submission on behalf of Heerkens that the ten-year limitation period pursuant to the Real Property Limitations Act applies his claim. In support of that position, Heerkens relied on the 2013 decision of Perkins J. in McConnell v. Huxtable. [56] I note that the decision at first instance was upheld by the Ontario Court of Appeal in 2014. [57]

102In that case, the ten-year limitation period was discussed in the context of a constructive trust claim by the applicant for an ownership interest in the respondent’s house. The applicant and respondent had cohabited for a number of years. Perkins J. concluded that the applicant was entitled to pursue her claim based in constructive trust and that the applicable limitation period was prescribed by section 4 of the Real Property Limitations Act.

103In his decision, Perkins J. summarised, at para. 77, the circumstances in which a claim based in constructive trust can give rise to a proprietary remedy:

A party seeking an ownership interest by way of constructive trust must plead and then prove facts establishing entitlement to it. The fact that a claimant must prove enrichment of the other party and a corresponding deprivation of the claimant, with no juristic reason for the enrichment in order to establish a constructive trust, and must also show that damages alone are insufficient and only a propriety remedy is adequate, does not alter the fact that the claimant has asked the court from the beginning to award an interest in land. To me, all this means is that the claimant has to plead and prove those key elements, usually called “material facts” in litigation, to justify the order sought. It should not matter how many material facts there are or whether the entitlement to land requires a two-step analysis, so long as the application makes a claim of entitlement to ownership of land.

104On that basis, Perkins J. concluded that the claim based on a constructive trust and for an interest in land pursued by the spouse in the matter before him was subject to the ten-year limitation period set out in section 4 of the Real Property Limitations Act.

105As set out above, I find that there are two juristic reasons why DPL is not in a position to advance a claim based on unjust enrichment. I therefore also find that DPL was not in a position to assign to Heerkens the right to advance such a claim. At most DPL was in a position to assign to Heerkens a claim in breach of contract based on the ‘bad debt’.

106Even if it is assumed that DPL made an assignment to Heerkens that is effectual in law (and, as set out above, I find that there was no such assignment was made), the only assignment that could have been made is of DPL’s right to pursue the Society for payment based on the Contract. Heerkens is therefore restricted to advancing a claim based in breach of contract. He is not in a position to “dress up” the breach of contract claim as one for which he is entitled, on the basis of unjust enrichment, to a proprietary remedy of a 25 percent interest in the title to the Fairgrounds property. [58]

107A claim based in breach of contract is subject to the two-year limitation period prescribed by sections 4 and 5 of the Limitations Act, 2002. Heerkens’ action, commenced in 2012, was commenced more than two years after the limitation period began to run and is therefore statute-barred.

Summary

108In summary, I order as follows:

1. The plaintiff is granted leave to amend the statement of claim in accordance with paragraph 78 above.

2. The balance of the plaintiff’s cross-motion for leave to amend the statement of claim is dismissed.

3. The defendant is granted summary judgment dismissing the plaintiff’s claim as statute-barred.

Costs

109In the event the parties are unable to agree upon costs of the motion for summary judgment and cross-motion, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of five pages, exclusive of a bill of costs;

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, including that they shall be double-spaced and in the requisite font size;

c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall be in the requisite font size;

d) Submissions, bills of costs, and case law or other authorities shall be single-sided;

e) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this Ruling is released; and

f) If either party determines that it is necessary to deliver submissions in reply, then the reply submissions shall be limited to three pages, conform to paragraphs (b) through (d) above, and be delivered by 5:00 p.m. on the fifteenth business day following the date on which this Ruling is released.

Madam Justice Sylvia Corthorn

Date: January 11, 2017

COURT FILE NO.: 12-55633 DATE: 2017/01/11

ONTARIO SUPERIOR COURT OF JUSTICE RE: Frank Heerkens Plaintiff – and – Lindsay Agricultural Society Defendant RULING ON MOTION FOR SUMMARY JUDGMENT Madam Justice Sylvia Corthorn

Released: January 11, 2017

1S.O. 2002, c. 24, Sched. B .

2The amendments to the title of proceeding, prayer for relief, and body of the statement of claim are collectively referred to as the “Proposed Amendments”.

3“CCN #3”, which is discussed in detail below.

4R.S.O. 1990, c. L.15 .

5The two affidavits of Andy Letham are referred to in this Ruling as the “2014 Letham Affidavit” and the “2015 Letham Affidavit”.

6The cross-examinations of Letham and Heerkens were conducted in December 2015.

7The examination for discovery of Heerkens was conducted in December 2013.

8Heerkens Affidavit, at paras. 2–3; 2014 Letham Affidavit, at para. 4 and exhibit “A”.

92014 Letham Affidavit, exhibit “B”.

102014 Letham Affidavit, at para. 5 and exhibit “B”.

112014 Letham Affidavit, at para. 5 and exhibit “B”.

122014 Letham Affidavit, at para. 6 and exhibit “C”.

132014 Letham Affidavit, at para. 7 and exhibit “D”. Note: The Record does not include a copy of Contemplated Change Notice # 2 (“CCN #2”).

142014 Letham Affidavit, at paras. 8–9 and exhibit “E”.

15Transcript of Heerkens EFD, at pp. 30−31, qq. 137−42.

16The amount of the invoice takes into consideration the 10 percent holdback. The full amount charged for the services included in the invoice is $486,345.50. See 2014 Letham Affidavit, at para. 11 and exhibit “F”.

172014 Letham Affidavit, at para. 11 and exhibit “H”.

182014 Letham Affidavit, at para. 11 and exhibit “H”.

192014 Letham Affidavit, at para. 11 and exhibit “G”.

20Heerkens Affidavit, at para. 12 and exhibit “I”.

21Heerkens Affidavit, at para. 13 and exhibit “J”. The total amount includes GST. A copy of the breakdown provided by DPL is included in the supplementary materials filed by the defendant.

22Heerkens Affidavit, at para. 14 and exhibit “L”.

23Heerkens Affidavit, at para. 16 and exhibit “N”.

242014 Letham Affidavit, at para. 15 and exhibit “M”.

25At p. 75 of the transcript from the examination for discovery of Heerkens, he says that a second payment option was included in the letter so as to “sweeten the deal” for the Society. A copy of Heerkens’ March 1, 2012 letter is included in the supplementary materials filed by the defendant.

26An allegation to this effect is made in the statement of claim. The defendant admits this allegation. A copy of the Society’s April 20, 2012 letter, sent “Without Prejudice”, is included in the supplementary materials filed by the defendant.

27A copy of the Society’s letter dated May 17, 2012 addressed to Heerkens is included in the supplementary materials filed by the defendant.

28R.R.O. 1990, Reg. 194 .

29Toronto Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798 , at para. 2 , 103 O.R. (3d) 502 , aff’d 2011 ONCA 149 .

30Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87.

31Hryniak, at para. 27 .

32Ibid , at paras. 47 and 49.

33See sub- rule 20.04(2.1) of the Rules of Civil Procedure.

34Hryniak, at para. 66 .

35R.S.O. 1990, c. C.34 .

36R.S.O. 1990, c. C.30 .

37Laird v. Edamura, at p. 5 ; Al-Con Precast Ltd. v. Dean Construction Co . (1985), 17 C.L.R. 236 (Ont. H.C.) , at paras. 52–54 ; additional reasons at (1985), 17 C.L.R. 236 (Ont. H.C.) , at p. 262 .

38See 2016637 Ontario Inc. v. Catan Canada Inc., 2013 ONSC 4727 , 26 C.L.R. (4th) 84, at paras. 11−14 .

39Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc., 2012 ONSC 3818 .

40Proposed amended statement of claim, at para. 1(b).

41Proposed amended statement of claim, at para. 1(a).

42Garland v. Consumers’ Gas Co., 2004 SCC 25 , [2004] 1 S.C.R. 629, at para. 44 .

43Supra , footnote 36.

44M. Robert Birmingham Ltd. v. Perth-Andover (Village) (1981) , 34 N.B.R. (2d) 320 (Q.B.), at paras. 17–18 , aff’d (1981) , 38 N.B.R. (2d) 14 (C.A.). See also Elmford Construction Co. v. South Winston Properties Inc. (1999) , 45 O.R. (3d) 588 (S.C.), at paras. 35–36 , aff’d (2001) , 59 O.R. (3d) 111 (C.A.).

45Statement of claim, at para. 9.

46Proposed amended statement of claim, at para. 11.

47Heerkens Affidavit, at para. 9.

48See the discussion below with respect to the January 2009 invoice.

49Supra , footnote 35.

50Fleet Street Financial Corporation v. Beaton Agencies, at para. 8 and referring to Trubenizing Process Corporation v. John Forsyth Limited , [1943] 4 D.L.R. 577 (S.C.C.).

51The amendment requested with respect to paragraph 5 includes a final sentence which, I find relates to the claim based in unjust enrichment. For that reason, the plaintiff is not granted leave to include that sentence in the amendment to paragraph 5 of the statement of claim.

522014 Letham Affidavit, exhibit ‘H’.

532014 Letham Affidavit, exhibit ‘I’.

54Artisan Developments Inc. v. Navaretta, 2011 ONSC 6054 , 288 O.A.C. 336, at paras. 10 , 17.

55Limitations Act, 2002, ss. 13(1) and 13(10) . See also Burns v. McMillan, 2012 ONSC 6910 , at para. 77 ; Carmen Drywall Ltd. v. BCC Interiors Inc., 2013 ONSC 4644 , at paras. 21–22 .

56McConnell v. Huxtable, 2013 ONSC 948 , 113 O.R. (3d) 727.

57McConnell v. Huxtable, 2014 ONCA 86 , 118 O.R. (3d) 561.

58With respect to “dressing up” a claim as one for unjust enrichment (and thus entitlement to a proprietary remedy), see Hainey v. Hainey (1999) , 49 R.F.L. (4th) 290 (Ont. S.C.), at para. 19 ; McConnell, supra , footnote 50, at para. 86.