2017 ONSC 3855

Court File and Parties

Court File No.: CV-09-388381 Date: 20170705 Superior Court of Justice – Ontario

Re: Lorne Rose Architect Inc. And: David Burstein and 155 Consumers Rd. Corp.

Before: Madam Justice J.T. Akbarali.

Counsel: Eric S. Baum for the plaintiff/defendant by counterclaim/moving party Mark Wiffen for the defendant/plaintiff by counterclaim/responding party

Heard: June 19, 2017

Endorsement

Overview

[1] The defendant, David Burstein, engaged the plaintiff, Lorne Rose Architect Inc., to provide certain architectural services related to the renovation of a building at 155 Consumers Rd. The relationship between the parties broke down. This litigation ensued.

[2] This litigation involves a claim and a counterclaim. The claim, brought by Lorne Rose, seeks payment for unpaid invoices of about $20,000 in respect of fees for professional services rendered.

[3] The counterclaim, brought by the defendants David Burstein and 155 Consumers Rd. Corp, seeks damages of about $910,000, alleging deficiencies in the professional work performed. The counterclaim does not identify the cause of action under which damages are claimed, but in oral argument, counsel clarified that the principal cause of action advanced is breach of contract, with an alternative claim in negligence. The pleading itself identifies many alleged deficiencies in the architectural work. Before me, those deficiencies were narrowed to two: Lorne Rose’s alleged failure to deliver timely drawings, and Lorne Rose’s alleged failure to adequately “quarterback” or “coordinate” with the engineers engaged on the project, in particular relating to the HVAC design and the structural elements necessary to support the HVAC structures.

[4] Lorne Rose brings this motion seeking summary dismissal of the counterclaim only, relying heavily on the absence of any expert evidence from the defendants. It argues that the record establishes that it acted diligently throughout and that any delay in finalizing the drawings was due to Mr. Burstein’s changing requirements. It argues that the record is replete with evidence of its coordination with the engineers. It argues that I cannot find that its coordination of the engineers with respect to the HVAC and structural design was deficient without expert evidence.

[5] The defendants argue the record is sufficient to allow me to grant summary judgment in their favour, in the form of declaratory relief declaring Lorne Rose to be liable for breach of contract, leaving the issue of the quantum of damages for trial.

[6] This motion raises the following issues:

a. Is this an appropriate case for summary judgment? b. Did Lorne Rose breach an implied term of contract to produce and deliver drawings in a timely manner? If I do not find that the contract included this implied term, did Lorne Rose breach a duty to the defendants to advise them that the timelines they sought for the project were not reasonable? c. Did Lorne Rose breach the contract by failing to properly “quarterback” the project?

Is this an appropriate case for summary judgment?

[7] Summary judgment must be granted when there is no genuine issue requiring a trial. This will be the case when the summary judgment process allows me to make the necessary findings of fact, allows me to apply the law to the facts and is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7 at paras 47, 49, [2014] 1 S.C.R. 87.

[8] In this case, Lorne Rose seeks summary judgment in the counterclaim only. There is no motion before me for summary judgment in the main action. The motion thus cannot dispose of the entirety of the lis between the parties. Some issues will go to trial even if summary judgment is granted.

[9] It is thus necessary to consider the implications on the main action of any judgment I render on the counterclaim. In Hryniak, the Supreme Court of Canada cautioned that courts should consider the consequences of a summary judgment motion in the context of the litigation as a whole. Partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact: Hryniak, para 60.

[10] The concerns about duplicative proceedings and inconsistent findings of fact have been echoed by the Court of Appeal in cases like Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at paras. 44-45 and Cook v. Joyce, 2017 ONCA 49 at para. 96, 2017 CarswellOnt 571. [1]

[11] In this case, the defence to the main action raises the same issues as the counterclaim. The defendants argue they need not pay the outstanding invoices, because Lorne Rose’s work was deficient. The pleading provides particulars of the alleged deficiencies including [2]:

a. “The proposed steel structure for the Heating, Ventilation and Air Conditioning (“HVAC”) units was excessive and required essentially installing a new roof on the building to incorporate the weight of the steel structures as well as the snow loads. THEY DID NOT SUPERVISE NOR COORDINATE PROPERLY.” (para. 7(b)); b. “The Plaintiff was to be the “quarterback” of the design/development process. In addition to the foregoing, The (sic) Plaintiff failed to evaluate and hire adequate professionals (specifically the electrical engineer) to complete the Project. This caused significant delay and was very time consuming for the owner to rectify.” (para. 7(q)); c. “Among the Plaintiff’s duties, (sic) was the coordination of the engineering information from the structural, mechanical and electrical engineers on the renovation Project. The Plaintiff failed to co-ordinate engineering information and its plans were deficient resulting in substantial additional costs being incurred… Specifically, the Plaintiff did not adequately communicate with the said engineers so as to ascertain the appropriate engineering requirements to be included in the architectural Plans for items including, (sic) the rooftop HVAC system and associated steel support structure…” (para. 7(r)); and d. “The Plaintiff failed to complete Plans in a timely fashion to allow Site Plan approval to be obtained for Building Permits to be issued, thereby causing the entire project to be delayed, and in which in turn precipitated substantial additional costs. …The Plaintiff was aware that the Project was to be ready for occupancy in August 2009 so that the tenants could move in by August 15, 2009. However, as a result of the delays caused by the Plaintiff, as outlined herein, the Project was not ready for occupancy until April 15, 2010…” (para. 7(s)).

[12] That these allegations made in defence of the main action form the entirety of the allegations of liability in respect of the counterclaim is apparent from a review of the counterclaim. The counterclaim repeats and relies upon the pleadings in the statement of defence. The only additional material facts pleaded in the counterclaim relate to the losses the defendants allegedly suffered by reason of Lorne Rose’s alleged failures.

[13] I fail to see how the trial of the main action cannot be in significant measure duplicative of this summary judgment motion. Moreover, the possibility of inconsistent findings of fact between any decision on the merits of this motion and the decision on the trial of the main action looms large.

[14] Lorne Rose argued that the case management judge has limited the defendants’ ability to lead expert evidence of its alleged failings, such that the risk of inconsistent findings is not practical, but only theoretical. I have reviewed the case management order of Chiappetta J. It sets out restrictions on the defendants’ ability to lead expert evidence on this motion, not at trial. Accordingly, I reject Lorne Rose’s argument that there is no risk of inconsistent findings.

[15] Given the risk of inconsistent findings and the certainty of duplicative proceedings, I decline to grant summary judgment on this motion. This is not a situation where resort to the enhanced fact-finding powers in r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 will allow me to decide the issues. The problem with this motion is not that it requires more robust fact-finding to resolve difficult issues. It is that the entirety of the lis between the parties should be determined at the same time.

[16] Although I am mindful of the direction in Hryniak that having dismissed the summary judgment motion I should seize myself of the trial of this action, I am reluctant to do so. I have no information as to the state of the main action and when it might be ready for trial. I understand it has not yet been set down. I am concerned that seizing myself of the action may, in fact, delay the ultimate trial of the issues by adding scheduling challenges. Accordingly, I do not seize myself of the trial.

[17] The parties agree that costs follow the event. Their costs outlines on the motion were similar in terms of fees. Lorne Rose would have sought $42,566.93 if successful, of which about $20,500 were fees inclusive of HST. The defendants seek $16,382.96 in fees inclusive of HST, plus disbursements of $5,567.99, for a total of $21,950.95.

[18] In my view, Lorne Rose’s own costs outline indicates that the costs sought by the defendants are both, fair and reasonable and within the reasonable expectations of the losing party. Accordingly, Lorne Rose shall pay to the defendants $21,950.95 in costs, inclusive of HST and disbursements, within thirty days.

Madam Justice J.T. Akbarali.

Date: July 05, 2017.

Footnotes

[1] The parties only addressed the issue of inconsistent findings briefly in oral argument, when I raised it in the context of their argument on costs. I thus sought and have considered further written submissions from the parties on the decisions in Baywood Homes and Cook.

[2] Other, more minor issues, like whether the drawings had to be in CAD format, also overlap between the defence and the counterclaim. I need not particularize all of the overlap. The examples I lay out are sufficient to demonstrate my concern.