Court File and Parties

Venture Excavating v Donset Construction 2017 ONSC 4134

Court File No.: CV-15-535291 and CV-15-535289 [1] Date: July 4, 2017 Superior Court of Justice

In the matter of a reference under the Construction Lien Act, R.S.O. 1990, c.C.30

CV-15-535291 MGI Construction Group v Varcon Construction Corporation and Donset Construction Limited CV-15-535289 Venture Excavating & Contracting Ltd. v. Varcon Construction Corporation and Donset Construction Limited CV-15-535286, Strela Trucking Ltd. v Varcon Construction Corporation and Donset Construction Limited (costs only)

Counsel: M. Drudi for responding plaintiff lien claimants MGI AND Venture R. Barnable for moving party defendant Donset V. Scalisi defendant Varcon [2]

Heard: June 28, 2017 and July 4, 2017

MASTER ALBERT

Endorsement

[1] Donset Construction Limited (“Donset”) moves for the following relief:

a. Leave to withdraw admissions as to the quantification of the lien claims in the two actions; and b. Orders varying the orders of January 4, 2017 granting summary judgment as against Donset in favour of MGI Construction Group (“MGI”) in action CV-15-535291 and in favour of Venture Excavating & Contracting Ltd. (“Venture”) in action CV-15-535289.

Background

[2] In the MGI motion for summary judgment the court signed judgment against Donset on January 4, 2017 for $118,105 plus costs. Donset seeks to reduce the quantum of the judgment by $50,509 to $67,596 based on its position that:

a. MGI failed to credit Donset with payment on the contract of $40,000.00 paid by cheque 234 on April 28, 2015, and b. MGI invoiced and included in its claim an overcharge of $10,509 for installing a manhole that Donset asserts was installed by Venture and not by MGI (part of invoice 2015-1069). Donset admits that the portion of the invoice charging for the cost of supplying the manhole is a proper charge.

[3] In the Venture motion for summary judgment the court signed judgment against Donset on January 4, 2017 for $122,836.48 plus costs. Donset seeks to reduce the quantum of the judgment to $111,947.34 on the basis that Venture failed to credit Donset with payment of $10,889.14 out of a $20,000.00 payment, and misallocated the $10,889.14 to another project, namely repairs to the house of Donset’s principal Mr. Corsetti.

[4] Donset asks the court to vary the disposition of the summary judgment motions based on the evidence as to quantum it seeks to rely on if the court grants leave for Donset to withdraw admissions made in both cases regarding the quantification of the lien claims.

[5] MGI and Venture oppose the motions. Varcon takes no position.

Leave under s.67 to bring the motions to withdraw admissions

[6] The Construction Lien Act, R.S.O. 1990, c.C.30 provides at section 67 that leave is required for a party to bring an interlocutory motion. Donset’s motions to withdraw admissions are interlocutory. Donset’s motions to vary the orders made on the summary judgment motions are not interlocutory as the resulting orders made on January 4, 2017 are final orders as between MGI and Donset and as between Venture and Donset. For leave to be granted in the motions for leave to withdraw admissions the court must be satisfied that the motions are (i) necessary or (ii) will expedite resolution of the case.

[7] Justice Perell took a practical and pragmatic approach to the issue of leave in Industrial Refrigerated Systems Inc. v Quality Meat Packers Ltd. [3]. He wrote at paragraph 73:

“… unless a motion for leave is brought as a preliminary motion, it is hollow to discuss the leave requirement once the court schedules or approves a timetable for the summary judgment motion. Of course, the court cannot abrogate a statutory leave requirement, but where the moving party does not bring a preliminary motion for leave or the responding party does not move to quash the motion for want of leave having been obtained, the court, having prepared for the motion being argued, should grant leave and hear the motion…After preparing for and hearing the motion on its merits, it would be specious to refuse leave, because refusing leave would just be a pretense for dismissing the motion on its merits. Refusing to grant leave in the circumstances of the case at bar is to close the judicial barn door after the parties’ horses have gone to run their race.”

[8] With the greatest of respect to Justice Perell I disagree. The leave test for interlocutory motions is an important part of the framework in the Construction Lien Act whereby the court presiding over construction lien disputes is given tools to control its process and determine lien claims expeditiously. The leave test for interlocutory proceedings in section 67 of the Construction Lien Act balances fairness and justice with expeditious resolution of lien claims. It requires the court to vet whether a motion is necessary or will expedite resolution of the lien dispute. If neither test is met then the motion cannot proceed on its merits, thus preventing the delay inherent in interlocutory proceedings.

[9] The policy reason for tighter control by the court over lien actions is that lien claimants have priority rights over an owner’s property rights. If the court were to apply the approach taken by Justice Perell in the Industrial Refrigerated Systems case in every interlocutory construction lien motion then counsel could circumvent the Construction Lien Act’s clear objective of expeditious determination of lien claims by merely joining the leave application with the substantive interlocutory motion in every case. If the legislature chooses to change the policy objective of expeditious proceedings as balanced against fairness and justice, and allow as-of-right interlocutory proceedings in construction lien actions, then that would be accomplished by removing the requirement for leave to bring interlocutory motions. Construction lien actions would then enjoy the same flurry of interlocutory motions (some with merit and others serving only to run up legal costs and delay trial) as are prevalent in general civil litigation.

[10] For the sake of expediency the specialized construction lien court in Toronto often schedules a leave motion to be heard as a preliminary motion on the same day as the substantive motion so that if leave is granted there is no additional delay waiting for a date to hear the substantive motion. By scheduling in that manner the court is not granting leave. If the construction lien court were to follow Justice Perell’s reasoning in the Industrial Refrigerated Systems case, then the mere scheduling of an interlocutory motion in an action under the Construction Lien Act would be tantamount to the granting of leave, without having applied the test to vet whether the motion is necessary or would expedite resolution of the case, thereby undermining the policy objectives of the Construction Lien Act. Or, if the leave motion had to be scheduled separately in every case it would delay hearing the motion on its merits in those cases where leave is granted.

[11] Having considered the test for leave and recognizing that the parties are prepared on today’s attendance to deal with the substantive issues that were before the court on the summary judgment motions, I find that the hearing of the interlocutory motions to grant leave to permit Donset to withdraw admissions would not further delay resolution of the issues in dispute. Consequently if the motions to vary the orders made on summary judgment proceed, then Donset should be permitted to withdraw the admissions as to quantification on the three items set out in Donset’s motion materials and substitute it with the evidence filed.

[12] On that basis the test for leave in section 67 of the Construction Lien Act is met and leave is granted to bring the motion to withdraw admissions and substitute evidence.

The test to set aside or vary an order made on a motion

[13] Donset seeks to vary two orders made by way of summary judgment where Donset claims it failed to appear in response to the motions through accident or mistake.

[14] Rule 37.14 (1) (b) provides:

(1) A party or other person who, (b) fails to appear on a motion through accident, mistake or insufficient notice…may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

[15] Donset claims that it failed to attend the motions on January 4, 2017 by reason of its principal’s mistaken understanding that MGI and Venture were not seeking relief against Donset. They seek to vary the motion result by reason of mistake.

[16] The mistake that Donset and its principal Mr. Corsetti rely on is that Mr. Corsetti believed that the summary judgment motions only concerned the issue of holdback as against Varcon, and did not also include a claim for judgment as against Donset for the full amount of the lien claims less any holdback paid by Varcon. With that mistaken belief Mr. Corsetti asserts that he did not know he needed to respond to the motions and attend the hearing.

[17] MGI and Venture assert that Mr. Corsetti was aware of the relief sought against Donset on the motions returnable January 4, 2017 and deliberately chose not to attend. They argue that rule 37.14 (1) (b) does not apply to a party who deliberately fails to attend, waiting in the weeds for the disposition of the motions and then pouncing if unhappy with the result.

[18] I find that Mr. Corsetti’s and Donset’s failure to attend the motion hearings on January 4, 2017 was not due to accident or mistake [4]. He had multiple opportunities to inform himself as to the relief sought on the January 4, 2017 motions. The facts support this conclusion.

[19] These two actions are part of a larger reference in which hearings for directions have been conducted pursuant to the reference rule and the Construction Lien Act. Donset was represented by Mr. Piersanti as counsel at the early hearings for directions, including the hearing for directions conducted on October 24, 2016 when I timetabled and scheduled the January 4, 2017 motions for summary judgment in the MGI and Venture actions, which are part of Stream 1 of the reference. I issued directions in writing on the same date. The directions included the following summary of the event scheduled for January 4, 2017:

“…in accordance with section 67 of the Construction Lien Act, R.S.O. 1990, c.C.30 and the mandate to deal with construction lien actions efficiently, it is appropriate to conduct the reference in respect of the Stream 1 lien claims as a motion for summary judgment. By this order the motion for summary judgment of the Stream 1 lien claims is scheduled, with the consent of counsel as to the timetable.” emphasis added

[20] The language of the October 24, 2016 order is clear: the Stream 1 lien claims (MGI and Venture are included in the Stream 1 lien claims) were to be determined by way of summary judgment. The directions I gave on October 24, 2016 did not confine determination by summary judgment to the holdback issue. It applied to all lien claim issues in the Stream 1 lien claims.

[21] Mr. Corsetti’s evidence is that he arrived late for the hearing for directions on October 24, 2016 but that he was there by the end of it. In such cases it would be usual for a client to discuss what transpired at the hearing with his lawyer, who was present throughout. His lawyer would have received a copy of the written directions ordered and sent to counsel by the court following the hearing for directions. Mr. Corsetti would have received a copy of the directions either right away from his lawyer or shortly thereafter (in November 2016) when his lawyer removed himself from the record and delivered Donset’s legal file to Mr. Corsetti.

[22] Before Donset’s lawyer removed himself as counsel MGI and Venture served their motion records for the motions returnable January 4, 2017. On page 2 of the motions records the relief sought on the motions for summary judgment is clearly set out. Donset’s former lawyer delivered Donset’s file to Mr. Corsetti in November 2016, including the motion records.

[23] In the MGI motion at paragraph (c) of the Notice of Motion MGI states:

“THE MOTION IS FOR: …(c) An order for summary judgment as against Donset Construction Limited a.k.a. Donset Construction Ltd. (“Donset”) in the amount of $118,105.00, $30,820.03 of this amount being a joint and several debt with Varcon.”

[24] In the Venture motion at paragraph (c) the Notice of Motion MGI states:

“THE MOTION IS FOR: …(c) An order for summary judgment as against Donset Construction Limited a.k.a. Donset Construction Ltd. (“Donset”) in the amount of $122,836.48, $32,054.73 of this amount being a joint and several debt with Varcon.”

[25] MGI and Venture had served the motion record on Mr. Piersanti, Donset’s lawyer of record. The next day Mr. Piersanti obtained an order of the court removing him as solicitor of record on grounds of conflict and Donset’s failure to pay outstanding fees.

[26] On October 31, 2016 Mr. Piersanti wrote to Donset and advised Donset’s Mr. Corsetti to retain a lawyer to carry on with the case. He recited in the letter that Mr. Corsetti had instructed him not to oppose the motions for summary judgment.

[27] The uncontradicted evidence is that Mr. Piersanti delivered a box of documents to Donset in November 2016 by delivering it to Mr. Corsetti. Included in the box of documents were the notices of motion returnable January 4, 2017 seeking summary judgment against Donset. Mr. Corsetti knew of the motions returnable January 4, 2017. He admitted on cross-examination that he did not open the box of documents that he received from Mr. Piersanti.

[28] Mr. Corsetti received multiple letters and communications as well as multiple copies of the summary judgment motion materials from Mr. Piersanti, from Mr. Holland (co-counsel with Mr. Drudi for MGI and Venture) and from the principal of one or both of MGI and Venture, reminding him of the January 4, 2017 motions, requesting his responding materials and otherwise ensuring that he was aware of the motions.

[29] Mr. Corsetti consulted a friend or family member, John Biancchi, a lawyer, and provided some documents to him. Donset refused to allow MGI and Venture access to Mr. Biancchi’s notes as to the discussions and advice given regarding the motions for summary judgment.

[30] Mr. Biancchi asked Mr. Holland for an indulgence to extend the time for Donset and Mr. Corsetti to deliver their defences to a trust claim against them in another action, and also asked whether MGI and Venture would agree to adjourn the January 4, 2017 summary judgment motions in the lien proceedings. The evidence is clear that Mr. Holland replied to Mr. Biancchi that he would grant the indulgence in respect of the pleadings in the trust action but that he would not agree to any delay of the January 4, 2017 hearing date for the summary judgment motions.

[31] On December 12, 2016 Mr. Holland wrote to Donset (by email) to remind Donset that responding motion records were overdue and urging Donset to retain legal counsel. Donset did not respond.

[32] Neither Mr. Corsetti nor anyone else on behalf of Donset appeared on the motions on January 4, 2017. Donset did not ask the court to adjourn the summary judgment motion hearing date.

[33] Mr. Corsetti takes the position that he had no idea what was happening and that he was not informed of the January 4, 2017 motions. If that is the case it is the result of his deliberate avoidance and failure to inform himself when the information was coming at him from multiple directions.

[34] The test for setting aside or varying an order made on a motion does not include inadequate legal representation or unhappy outcomes. In any event, the evidence shows that Mr. Piersanti highlighted to Donset its need to get new legal representation for the January 4, 2017 summary judgment motions. Donset had decided not to oppose the motions, instructions that Mr. Peirsanti had recorded in a letter Mr. Corsetti.

[35] After the summary judgment motions resulted in orders against Donset, Donset took no immediate steps to have them set aside. It was only after MGI and Venture discovered a creditor (Van Horne) and issued garnishment proceedings that Donset started to react. The inference that MGI and Venture asks the court to draw is that Donset had not been concerned about judgments against it because it has no assets and was in effect judgment proof. However once the garnishment proceedings started, Donset realized that it was at risk of losing accounts receivable on another job. This is a reasonable inference to be drawn from these facts.

[36] I find that Mr. Corsetti and Donset knew or ought reasonably to have known that (i) the summary judgment motions in the MGI and Venture lien claim actions sought judgments against Donset for $118,105.00 and $122,836.48 respectively and (ii) MGI and Venture intended to proceed on January 4, 2017.

[37] Mr. Corsetti runs his own business as a construction contractor. He is familiar with contracts and formal documents. He raised no issues of language or literacy barriers. The notices of motion are very clear in the relief sought. In both cases the relief sought against Donset is set out with particularity on page two of the motion record.

[38] I find that Mr. Corsetti’s failure to open the box of documents that he received from his former lawyer, his failure or blatant disregard for the court documents that were served on him and his disregard for the advice of Mr. Piersanti to retain someone to advise him on these lien actions do not constitute accident or mistake. Rather, these are deliberate actions or failures on the part of Mr. Corsetti and Donset to become informed and respond to motions aimed directly at Donset seeking monetary relief.

[39] I find that Donset’s motions to set aside or vary the disposition of the motions for summary judgment in MGI and Venture actions must fail because Donset has not met the test of proving that Donset failed to attend the January 4, 2017 motion hearing by reason of accident or mistake.

The test to withdraw admissions

[40] The issue of withdrawing an admission only arises if the court is prepared to set aside or vary the orders made on the summary judgment motions.

[41] Because Donset has not met the test prescribed in rule 37.14, the court need not examine the evidence that Donset seeks to substitute if the court were to permit Donset to withdraw the admissions as to quantification in the MGI and Venture actions.

[42] However, for the sake of completeness, I will address the issue of withdrawing admissions in the context of this case.

[43] Had Donset satisfied the rule 37.14(1) test, I would next have considered whether Donset meets the test for withdrawing the admissions regarding quantification of the lien claims.

[44] The context is relevant. Section 67 of the Construction Lien Act directs that where appropriate the court must apply expeditious and summary procedures to determine construction lien claims. To that end a practice has developed in Toronto construction lien references to convene hearings for the court to give directions. It is a form of case management. One purpose of such hearings for directions is to identify and narrow issues for trial. In an effort to narrow issues I directed the parties to specify whether there were any real issues (in contrast to boiler plate pleadings) regarding the quantum or timeliness of the lien claims of MGI and Venture. The court expects the parties to investigate their defences to the lien claims, specify the nature of any objection to timeliness and/or quantum of the lien claims and outline the evidence they intend to rely on to prove that the lien claims are out of time or overstated as to quantum.

[45] In the MGI and Venture actions counsel responding to these directions did not take issue with the timeliness of the lien claims. Nor did they take issue with the quantum of the claims advanced by MGI or Venture. Thus the issues were narrowed and I ordered that the lien claims be adjudicated by way of summary judgment. The abandonment of any challenge to quantum of the lien claims is akin to an admission.

[46] Now Donset seeks to withdraw its admissions that the amounts claimed in the MGI and Venture lien actions were not disputed. Donset now asserts that the claims were overstated. Donset seeks to reduce the lien claim amount in MGI by $50,509 and in Venture by $10,889.14.

[47] The test to withdraw an admission is set out succinctly in Howell-Lillepool v Smith [5] at paragraph 3:

a. The proposed amendment to the facts admitted must raise a triable issue, b. The party seeking to withdraw the admission must provide a reasonable explanation for changing his position, and c. Withdrawing the admission would not result in prejudice that cannot be compensated by costs or an adjournment.

[48] As to part (a) of the test, the triable issue raised is the accounting as between the parties for amounts charged and paid for services and materials supplied. There are two discreet accounting issues in the MGI case and one discreet accounting issue in the Venture case. I find that the proposed amended facts raise triable issues.

[49] As to part (b) of the test, Donset’s explanation is what I would characterize as borderline. Donset’s counsel at the time received an accounting from MGI and Venture’s counsel and asked Donset’s counsel to verify and agree to its accuracy. Donset’s principal provided evidence that the accounting was incomplete and that he did not understand the details at the time his lawyer admitted facts. He blames his previous lawyer for responding and admitting the quantum of the lien claims in the MGI and Venture cases without clear instructions from Donset.

[50] In Antipas v Coroneos [6] at paragraph 20, Justice Saunders balanced the interests of a party’s right to have an issue tried on its merits against the interest of expeditious resolution through expedient and responsible litigation. He concluded that if there is a triable issue a party should be allowed to withdraw an admission if there is a reasonable explanation for the change of position.

[51] As to part (c) of the test, MGI and Venture assert that they would be prejudiced by the inability to collect on their judgment due to Donset’s insolvent financial status. If the judgments signed on January 4, 2017 are allowed to stand, MGI and Venture can proceed with the garnishment of payment owing on another project to Donset, the garnishments having been in progress when Donset initiated the present motions.

[52] MGI and Venture’s assertions of prejudice fail for two reasons. The first is that the accounting issues that Donset raises can be determined on their merits on this motion, thereby causing no additional delay in enforcement by MGI and Venture.

[53] The second is that there is no evidence of probative value upon which to conclude that Donset is insolvent. Donset’s evidence is that it takes one job at a time and that at the time of the cross-examination it did not have an ongoing project. The fact that Donset is a company run by its sole principal from his home and that it has no assets is not evidence of insolvency. There is no evidence of an assignment into bankruptcy or receivership or other insolvency protection proceedings. Nor is there evidence of other creditors seeking to execute judgments against Donset.

[54] I find that the third branch of the test is met. There is no prejudice that cannot be compensated by costs or an adjournment.

Judgment on the merits of the MGI and Venture claims

[55] Had the court granted leave to vary the orders made on the summary judgment motions and considered the new quantification evidence tendered by Donset, the results would have been no different.

[56] Regarding quantification of the MGI lien claim as against Donset, Donset disputes MGI invoice 2015-1069 for the supply and installation of a manhole. In his evidence Mr. Corsetti admits that MGI supplied the materials but claims that Venture and not MGI installed it. The first time Mr. Corsetti challenged the invoice was in May 2017, almost two years after MGI issued the invoice. There is no documentation that corroborates Donset’s position that the MGI lien claim should be reduced by $10,509.00 for the installation of the manhole.

[57] On this issue of quantification I prefer and accept the evidence of MGI over that of Donset.

[58] The second item regarding quantification of the MGI claim for lien concerns cheque number 234 for $40,000.00 that Donset claims should have been included as a credit to Donset in calculating the claim for lien. Mr. Corsetti deposed that he was on site at the time in question and that MGI was not on site. He provided no daily site logs or other backup documentation to support this assertion.

[59] MGI’s evidence through Mr. DiNicola is that the cheque for $40,000.00 was provided in payment of removing debris, for which MGI issued invoice 2015-989 for equipment rental. The notation on the copy of the cheque filed in evidence by Donset has the notation “equipment rental” and the evidence surrounding the notation is that it was made by Donset’s accountant. While the invoice was for slightly more than $40,000.00, Mr. DiNicola’s evidence is that MGI wrote off the balance of the invoice. For that reason the equipment rental invoice is not part of the lien claim and similarly not reflected in the accounting as it is a “wash”. MGI produced time sheets and other business records to support that the services invoiced were supplied.

[60] On this payment issue I prefer and accept the evidence of MGI over the evidence of Donset on the basis that it is credible and corroborated.

[61] Regarding the quantification issue in the Venture action, the issue in dispute is whether a $20,000 payment made by cheque number 219 should be credited to the Donset project or whether Venture properly allocated $10,889.14 of the payment to waterproofing work that Venture performed for Mr. Corsetti personally at his home, crediting only $9,110.86 of the payment to the project in issue in the Venture lien claim action.

[62] Venture’s representative Mr. Liorti deposed that Venture performed the waterproofing work at Mr. Corsetti’s home at the request of Donset and Mr. Corsetti. Mr. Corsetti’s position is that the waterproofing work to his home was minimal. He also provided oral evidence that he paid Venture in cash for the work to his home, but he had no evidence to corroborate a cash payment to Venture of $10,889.14.

[63] The payment stub for the cheque in issue refers only to “partial payment” whereas the payment stubs for other cheques for payment on the project refer to “170 North Queen” and describe the nature of the work for which payment was being made.

[64] Mr. Corsetti admits that waterproofing work was done at his home but minimizes it. Venture produced an invoice (under the style name “Vanguard”) for the work, to which a markup of $1,000.00 was added.

[65] On whether the $10,889.14 payment for the work to Mr. Corsetti’s home should have been allocated to payment towards the Venture lien claim for services and materials supplied to the 170 North Queen Street project, I accept the evidence of Venture over that of Donset.

[66] On the evidence adduced on the motions heard on June 28, 2017 to withdraw admissions and vary the orders made on January 4, 2017 on the two summary judgment motions, I conclude that there would be no change to the quantification and the result of the January 4, 2017 summary judgment motions had the evidence adduced on the present motions been before the court on January 4, 2017.

Conclusion

[67] For all of these reasons the orders made on January 4, 2017 granting summary judgment in favour of MGI for $118,105 plus costs and in favour of Venture for $122,836.48 plus costs, payable by Donset, are not varied and any stay of the said orders is hereby lifted. MGI and Venture may proceed with enforcement proceedings.

[68] On the issue of costs, it is appropriate for costs to follow the event. Having reviewed the costs outlines filed by the parties and having heard the submissions of counsel I find that a fair and reasonable quantification of costs is the three motions brought by Donset, the motion to vary the Strela judgment having been abandoned prior to the motion hearing, is:

a. $5,000 inclusive of disbursements and HST in favour of MGI, b. $5,000 inclusive of disbursements and HST in favour of Venture and c. $1,000 inclusive of disbursements and HST in favour of Strela Trucking Ltd. in action CV-15-535286.

[69] Given the complexity of the motion issues, the importance of the issues to the responding party and the six month delay in enforcement of over $250,000 ordered on January 4, 2017, the late abandonment of the motion in the Strela action after motion materials had been exchanged, and taking into account that the amounts placed in issue by Donset are relatively modest, it would be appropriate to fix costs in the amounts stated above.

[70] The costs outlines filed by Donset confirm that these costs orders are well within the reasonable expectation of Donset given that the costs outlines of the subcontractors MGI, Venture and Strela are for lower amounts. The modest increase above the costs outlines filed by the subcontractors in the amounts awarded for costs reflect that the motion hearings took longer than expected and required counsel to return a second day for disposition and to make submissions on costs.

[71] For all of these reasons the motions are dismissed with costs in favour of the responding parties fixed at $5,000 in favour of each of MGI and Venture payable by Donset and fixed at $1,000 in favour of Strela payable by Donset.

Master C. Albert July 4, 2017

Footnotes

[1] Also court file CV-15-535286, Strela Trucking Ltd. v Donset et al, in respect of costs only. [2] The court excused Mr. Scalisi after fixing July 18, 2017, noon, for a conference call in the reference (Stream 1). [3] Industrial Refrigerated Systems Inc. v Quality Meat Packers Ltd., 2015 ONSC 4545 [4] Insufficient notice was not argued and is not in issue. [5] Howell-Lillepool v Smith, 2012 ONSC 4385 [6] Antipas v Coroneos , 1988 CarswellOnt 358