ONSC 6380

COURT FILE NO.: CV-15-0683

DATE: 20171024

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SUMMA ENGINEERING LIMITED

Plaintiff

– and –

SELECTRA CONTRACTING LTD., SONA CONSTRUCTION LIMITED and THE CORPORATION OF THE TOWN OF PENETANGUISHENE

Defendants

Charles C. Chang, for the Plaintiff (Moving Party)

Derek A. Schmuck, for the Defendant Sona Construction Limited (Responding Party)

HEARD: August 11, 2017

REASONS FOR DECISION

DiTOMASO J.

INTRODUCTION

[1] The Plaintiff Summa Engineering Limited (“Summa”) brings this Motion for Summary Judgment on its lien claim. It asserts that there is no genuine issue requiring a trial for its determination. The action as against the Defendant, The Corporation of the Town of Penetanguishene has been discontinued. The remaining Defendant Selectra Contracting Ltd. (“Selectra”) supports Summa’s Motion for Summary Judgment.

OVERVIEW

[2] On this Motion for Summary Judgment, Summa served and filed a Motion Record which contained the affidavit of Carmen Cosentino sworn July 7, 2017. He is the office manager of Summa and has personal knowledge of the matters deposed to in his affidavit which also contains a number of relevant exhibits including the Purchase Order, Claim for Lien, Statement of Account, Statement of Claim, Defendant’s pleadings, order of Mr. Justice T.R. Lofchik dated August 29, 2015, various judicial endorsements, emails and the transcript of the examination for discovery of a representative from the Defendant Sona Construction Limited (“Sona”).

[3] Also found in Summa’s Motion Record is the affidavit of Niki Mastracci sworn July 5, 2017.

[4] Sona filed no responding materials.

[5] Summa’s Motion Record discloses the following.

The Project, Owner and Trades

[6] In this action, Summa is claiming entitlement to, among other things, a lien in respect of moneys due, owing and payable to Summa for its work on a certain construction project involving the upgrade and expansion of the Phillip H. Jones Pollution Control Plant in Penetanguishene, Ontario (the “Project”).

[7] The Project lands are owned by the Defendant, The Corporation of the Town of Penetanguishene (the “Owner”). The general contractor for the Project was the Defendant Sona and the applicable electrical subcontractor was the Defendant Selectra.

[8] Summa was one of the Defendant Selectra’s subcontractors and was responsible for, among other things, the systems integration for some (but not all) of the Project’s electrical control systems.

[9] After commencing its work on the Project on or about September 1, 2011, Summa completed and invoiced for same in accordance with its agreement with the Defendant Selectra. Summa last supplied services and/or materials to the Project on April 30, 2015.

Summa’s Lien, Action, Discontinuance, First Pre-trial, Discoveries

[10] Due to non-payment, Summa registered its claim for lien on May 1, 2015 and commenced its action herein by Statement of Claim issued June 16, 2015. Thereafter, the Defendants delivered their respective pleadings.

[11] Completely unbeknownst to Summa, the Defendant Sona obtained the order of Justice Lofchik dated August 29, 2015, which order vacated the registrations of Summa’s claim for lien and certificate of action. Summa was not served with a copy of Justice Lofchik’s said order at the time and only came to know of it in June 2016. Justice Lofchik ordered that the sum of $130,786.81 being the full amount of Summa’s lien plus security for costs be paid into court whereupon Summa’s lien and certificate of action would be vacated. Those monies were paid into court.

[12] Almost immediately thereafter, Summa discontinued the action herein as against the Owner, to which the Owner agreed on a without costs basis.

[13] Summa passed its trial record on or about June 24, 2016 and the first pretrial conference was held before Justice Sutherland on January 25, 2017. Justice Sutherland granted leave for the parties to exchange affidavits of documents and productions and to conduct examinations for discovery.

[14] Further to Justice Sutherland’s endorsement, Summa and others conducted their respective examinations for discovery of the Defendants on April 27, 2017.

ISSUE

[15] The issue to be determined is whether there is a genuine issue requiring a trial.

POSITIONS OF THE PARTIES

Position of the Moving Party Summa

[16] Summa submits that there is no genuine issue requiring a trial. It seeks summary judgment in the amount of $111,988.99. It seeks leave to amend the quantum of its claim in accordance with the reconciled amount of $111,988.99 plus costs. Summa seeks payment of judgment and costs from the alternate security posted into court by Sona pursuant to the order of Lofchik J. dated August 29, 2015.

[17] Summa submits that there is uncontradicted evidence supporting its claims for summary judgment. Summa submits that Sona’s pleadings, Sona’s admissions under oath and Selectra’s confirmation under oath as to, among other things, the timeliness and quantum of Summa’s claim for lien all supports Summa’s position that there is no genuine issue requiring trial and that it is entitled to summary judgment.

Position of the Responding Party Sona

[18] Sona submits that Summa requires leave to bring this motion and that leave should not be granted. Further, pursuant to s. 48.04 of the Rules of Civil Procedure, Summa should not be permitted to bring this motion at this time.

[19] In addition, Sona submits that there is not a proper evidentiary record before the court as to what Sona owes Selectra and Sona relies upon s. 17(1) of the Construction Lien Act. No evidence has been provided in this regard. There is no evidence of the value of work provided by Selectra. It is submitted there is a genuine issue requiring a trial in respect of the limit of both the amount Sona owes to Selectra and the hold back. It is also submitted that Summa is required to obtain judgment against Selectra as well. It is asserted that summary judgment does not resolve all of the issues in these proceedings as there are still outstanding cross-claims between Sona and Selectra and also the Town as against Sona.

ANALYSIS AND FINDINGS

THE LAW AND AUTHORITIES

Availability of Summary Judgment Motions in Lien Actions

Leave

[20] Motions for summary judgment are available in lien actions under the Construction Lien Act, R.S.O. 1990, c.C.30, as amended (the “Construction Lien Act”). Although the requirement to obtain leave is prescribed in s. 67(2) of the Construction Lien Act, from a practical and pragmatic perspective, that requirement is seen as “a statutory anomaly” and leave should rarely be refused[^1].

[21] In the case at bar, Summa has sought leave to bring its motion for summary judgment and respectfully submits that such leave ought to be granted. Its motion would expedite the resolution of the issues in dispute in Summa’s lien claim herein by removing same from the multiple lien and non-lien actions that have been consolidated herein.

Summary Judgment

[22] Subrules 20.01(1), 20.02(2), 20.04(2) and 20.04(2.1) provide:

(a) subrule 20.01(1) : a plaintiff may move for summary judgment on all or part of its claim, with supporting affidavit or other evidence, after the defendant has delivered a statement of defence;

(b) subrule 20.02(2): in response to affidavit or other evidence on a motion for summary judgment, a responding party may not rest solely on its pleadings, but must set out, in affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial;

(c) subrule 20.04(2): the court shall grant summary judgment accordingly if:

(i) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or

(ii) the parties agree to have all or part of the claim determined by, and the court is satisfied that it is appropriate to grant, summary judgment; and

(d) subrule 20.04(2.1): in determining whether there is a genuine issue requiring a trial, the presiding judge may exercise any of the following powers, unless it is in the interests of justice for such powers to be exercised only at trial:

(i) weighing the evidence,

(ii) evaluating the credibility of a deponent;

(iii) drawing any reasonable inference from the evidence[^2].

[23] Summary judgment ought to be granted where the motion judge is able to reach a fair and just determination on the merits, i.e. when the motion process (as opposed to trial process): 1) allows the motion judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is proportionate, more expeditious and less expensive means to achieve a just result. These principles are interconnected[^3].

[24] The standard for fairness is whether the motion procedure enables the judge to find the necessary facts and apply the relevant legal principles so as to be justly dispositive of the dispute between the litigating parties[^4].

[25] While the onus is on the moving party to establish that there is no genuine issue requiring a trial for its determination, the responding party must put their “best foot forward” or risk losing. The motion judge must “take a good hard look at the merits” to determine whether there is a genuine issue of material fact or law requiring a trial for its fair and just determination[^5].

[26] The court should assume that “the record contains all the evidence which the parties would present if there was a trial and that the parties have advanced their best respective cases. No party should be allowed two kicks at the can by “keeping its powder dry” – this “would not be efficient, affordable, proportionate or fair”[^6].

FINDINGS

[27] I find that this is an appropriate case for summary judgment (see Hyrniak at para. 66). I find there is no genuine issue requiring a trial for the following reasons.

[28] In both its pleading and under examination for discovery, the Defendant Sona confirmed:

(a) that it has not, in any way, denied Summa’s supply of services and materials to the Project[^7];

(b) that it has not, in any way, denied the amount invoiced by and paid to Summa for its supply of services and materials to the Project[^8];

(c) that it has not, in any way, alleged any delay or deficiencies in Summa’s supply of services and materials to the Project[^9];

(d) that it has not, in any way, denied the timeliness or quantum of Summa’s claim for lien and that it has no particulars, facts or evidence respecting timeliness or quantum[^10].

[29] I find Selectra, the applicable electrical subcontractor and the party with whom Summa contracted directly, has confirmed under oath, among other things:

(a) the particulars of the services and materials that Summa supplied to the project;

(b) the amount due, owing and payable to Summa for that supply totaling $111,988.99;

(c) that there were no delays or deficiencies in Summa’s said supply; and

(d) the timeliness and quantum of Summa’s claim for lien[^11].

[30] I find that on this motion record, I accept the uncontroverted evidence adduced by Summa, and, in particular, I accept the evidence of Carmen Cosentino and Niki Mastracci (Controller of Selectra) deposed to in their respective affidavits.

[31] I adopt the reasoning of Perell, J. in Industrial Systems Inc., supra and find that leave is not necessary. If leave is required (which it is not) I find that leave is still granted to bring this summary judgment motion which is appropriate in this case.

[32] Rule 48.04 of the Rules of Civil Procedure does not apply in this construction lien action. The process is different in construction lien actions which contemplate the bringing of motions after the action has been set down.

[33] I reject Sona’s submissions based on s. 17(1) of the Construction Lien Act. The very matters regarding which Sona complains in opposition to the motion are entirely within the knowledge of Sona. Those matters are not within Summa’s knowledge. Summa sought an undertaking on examination for discovery. That discovery took place on April 7, 2017. The undertaking related to allegations set out in para. 5 of Sona’s Statement of Defence. The undertaking was for disclosure of the total amount paid by Sona to Selectra prior to March 2015. That undertaking was never fulfilled by Sona.

[34] Further, this argument raised by Sona is without merit. Sona filed no material in respect of anything on this summary judgment motion. Sona adopted a deliberate and tactical approach where it was admitted by Sona’s counsel that no material would be filed. To take that tactical approach and yet complain by way of submissions of a variety of technical and alleged substantial issues without responding material required by the rules is inappropriate and further is not contemplated by the rules and the authorities. I find that Sona has not put its best foot forward in this case. It should not be allowed two kicks at the can by “keeping its powder dry”. I find to do so would not be efficient, affordable, proportionate or at all fair.

[35] In this case, I find there is no genuine in Summa’s lien action requiring a trial for its determination. This court can make a fair and just determination on Summa’s lien claim on this evidentiary record. As outlined above:

(a) the action had been discontinued as against the Owner (given the posting of applicable alternate security by the defendant Sona);

(b) the defendant Selectra supports Summa’s motion herein and has confirmed under oath, among other things, the timeliness and quantum of Summa’s claim for lien; and

(c) the defendant Sona has admitted under oath that:

(i) Summa supplied services and materials to the Project,

(ii) It has no particulars, facts or evidence as to any delays or deficiencies in Summa’s supply of services and materials to the Project, and

(iii) It has no particulars, facts or evidence to counter Summa’s evidence that its claim for lien was timely and of appropriate quantum.

[36] I grant leave to Summa to amend the quantum of its claim in accordance with the reconciled amount of $111,988.99.

DISPOSITION

[37] For these reasons, Summa’s motion for summary judgment against Sona is granted in the amount of $111,988.99. Costs are to be determined by way of written submissions. Payment of this judgment with accrued interest and costs (if any) shall be paid from the alternate security posted in court by Sona pursuant to the order of Lofchik, J. dated August 29, 2015.

[38] As for costs, if the parties cannot agree upon costs, within the next seven days Summa shall serve and file a concise one page summary regarding costs, a costs outline, and a Bill of Costs together with any authorities. Sona shall have seven days thereafter to serve and file the same materials. If any reply is required, Summa shall serve and file its reply within five days of Sona’s submissions. All materials by the parties are to be filed with my judicial assistant at Barrie.

G.P. DiTomaso, J.

Released: October 24, 2017

[^1]: Construction Lien Act, R.S.O. 1990, c.C.30, as amended, s. 67(2) Industrial Refrigerated Systems v. Quality Meat Packers, 2015 ONSC 4545, at paras. 72-5

[^2]: Rules of Civil Procedure, supra, rr.20.01(1), (3), 20.02(2), 20.04(2) & 20.04(2.1)

[^3]: Hryniak v. Mauldin, 2014 SCC 7, at paras. 49-50

[^4]: Hryniak, supra at para. 50

[^5]: 1061590 Ontario Limited v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.) at para. 36 Industrial Refrigerated Systems, supra at para. 69

[^6]: Industrial Refrigerated Systems, supra at para. 68 Rahimi et al. v. Hatami et al., 2015 ONSC 4266, at paras. 6-7

[^7]: Sona Statement of Defence and Crossclaim (Motion Record, tab 2E, pp. 73-8) Transcript of Sona Discovery Held on April 27, 2017 (Motion Record, tab 2K, pp. 297-9, qq. 136 & 139

[^8]: Sona Statement of Defence and Crossclaim (Motion Record, tab 2E, pp. 73-8) Transcript of Sona Discovery Held on April 27, 2017 (Motion Record, tab 2K, p. 299, qq. 140-4)

[^9]: Sona Statement of Defence and Crossclaim (Motion Record, tab 2E, pp. 73-8) Transcript of Sona Discovery Held on April 27, 2017 (Motion Record, tab 2K, pp. 279, q. 60; pp. 281-2, qq. 72-6; pp. 285-6, qq. 93-6

[^10]: Sona Statement of Defence and Crossclaim (Motion Record, tab 2K, pp. 300-3, qq. 147-54)

[^11]: Affidavit of Carmen Cosentino sworn July 7, 2017 (Motion Record, tab 2, para. 23) Affidavit of Niki Mastracci sworn July 5, 2017 (Motion Record, tab 3, para. 5)