ONSC 6381

COURT FILE NO.: CV-15-1097

DATE: 20171024

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ERAMOSA ENGINEERING INC.

Plaintiff

– and –

THE CORPORATION OF THE TOWN OF PENETANGUISHENE and SELECTRA CONTRACTING INC.

Defendants

Counsel:

Timothy J. McGurrin, for the Plaintiff (Moving Party)

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

HEARD: August 11, 2017

REASONS FOR DECISION

DiTOMASO J.

INTRODUCTION

[1] The Plaintiff Eramosa Engineering Inc. ("Eramosa") brings this Motion for Summary Judgment on its lien claim in the amount of $94,729.17 plus pre-judgment interest, post-judgment interest and costs.

[2] No responding materials were delivered by Sona Construction Limited ("Sona") on this motion. Motion for Summary Judgment was also brought by Summa Engineering Limited against Selectra Contracting Ltd., Sona Construction Limited and The Corporation of the Town of Penetanguishene in action 15-0683. These two Motions for Summary Judgment were heard together. The claims were similar in that the moving parties sought summary judgment for payment of monies owed to them by Sona in respect of the same construction project involving the upgrade and expansion of the Phillip H. Jones Pollution Control Plant in Penetanguishene, Ontario (the "Project").

OVERVIEW

[3] In this action, Eramosa is claiming entitlement to, among other things, a lien in respect of monies due, owing and payable to Eramosa for its work involving the upgrade and expansion of the Phillip H. Jones Pollution Control Plant in Penetanguishene, Ontario.

[4] The Project lands are owed by the Defendant, The Corporation of the Town of Penetanguishene (the "Owner"). The general contractor for the Project was Sona and the applicable electrical subcontractor was the Defendant Selectra Contracting Ltd. ("Selectra"). Selectra supports Eramosa's Motion herein for Summary Judgment. To the extent that Eramosa's lien has been vacated by the order of Justice Lofchik dated August 28, 2015, and the Town has no interest in the security, Eramosa has no ongoing claim against the Town. Said order provided that the Eramosa's lien claim be vacated upon the sum of $118,411.46 being posted by lien bond. That lien bond was posted.

[5] Eramosa was one of Selectra's subcontractors and was responsible for, among other things, certain engineering services including the development of custom Supervisory Control and Data Acquisition (SCADA System including related services and software). Eramosa commenced its work and services and supplied materials to the Project on or about August 15, 2011 and issued invoices for the work, services and materials as and when the same were completed. The invoices are attached to the affidavit of Darren Nicholas Hallas, President of Eramosa.

[6] Eramosa registered its lien on August 6, 2015. Sona vacated the registration of the Eramosa's lien pursuant to the order of Justice Lofchik dated August 28, 2015.

[7] Sona posted a lien bond into court in the amount of $118,411.46 to vacate Eramosa's construction lien.

[8] Eramosa filed its trial record on January 23, 2017 and the first pretrial conference was held before Justice Sutherland on January 25, 2017.

[9] In addition, on January 26, 2017 Regional Senior Justice Fuerst released her endorsement respecting a motion previously brought for consolidation of various actions, including the applicable lien actions.

[10] It is alleged by Sona in its Statement of Defence dated May 4, 2017, that Selectra has received payment from Sona in part for its services in relation to the Project and that Selectra is holding such funds in its account. Selectra denies that it is holding any funds for the benefit of its subcontractors, including Eramosa. Filed in support of Eramosa's motion was the affidavit of Darren Nicholas Hallas sworn July 26, 2017 which includes as exhibits the pleadings, the agreement between Selectra and Eramosa, invoices, the registered lien, the order of Justice Lofchik dated August 28, 2015 and the endorsements of Justice Sutherland, and Regional Senior Justice Fuerst. Also included in Eramosa's Motion Record is the affidavit of Niki Mastracci sworn July 21, 2017. Ms. Mastracci is the controller of Selectra.

[11] No responding materials were delivered on behalf of Sona.

ISSUE

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

POSITIONS OF THE PARTIES

Position of the Moving Party Ermosa

[13] Eramosa submits that there is no genuine issue requiring a trial. Eramosa does not require leave to bring this Motion for Summary Judgment. If leave is required, leave ought to be granted. Further, if necessary, leave should be granted to add Sona as a party defendant on this motion.

[14] It is submitted that Selectra supports this motion and the Town has no interest in the security posted by Sona. It is submitted that on the uncontradicted evidence before the court, Eramosa is entitled to the sum of $94,729.17 plus interest and costs payable from the security posted pursuant to the order of Justice Lofchik.

[15] Eramosa further submits that the services and materials were delivered by Eramosa pursuant to the contract with Selectra. The amount due, owing and payable to Eramosa by Selectra for the supply of materials and services to the Project totals $94,729.17. It is further submitted that there was no issue with the timeliness and quality of Eramosa's supply of materials and services to the Project and no delays or deficiencies in the said supply by Eramosa. Eramosa submits that its claim for the lien is proper both as to timeliness and quantum. Eramosa's assertions are supported by Selectra and Eramosa relies upon the affidavit of Niki Mastracci in this regard. Further, Eramosa relies upon and adopts the similar position taken by Summa on its Motion for Summary Judgment. Ultimately, Eramosa submits that there is no genuine issue requiring a trial and that it is entitled to summary judgment.

Position of the Responding Party Sona

[16] The position of Sona is similar to its position taken on the Summary Judgment Motion brought by Summa. While it filed no responding material, Sona submitted that leave was required to bring this motion and no leave should be granted either pursuant to the Construction Lien Act or s. 48.04 of the Rules of Civil Procedure.

[17] Sona also took a similar position that the proper evidence on Eramosa's motion was lacking. In particular, it was submitted that s. 17(1) of the Construction Lien Act applies in that there was no evidence in respect of what Sona owed Selectra and that the value of the work provided by Selectra was in issue. It was submitted that Eramosa's claim was limited by what Sona owed Selectra and a hold back amount.

[18] Further, it was asserted that Sona was not even named as a party defendant in these proceedings. It was argued that there are genuine issues requiring a trial and that the Motion for Summary Judgment ought to be dismissed.

ANALYSIS

[19] This decision is to be read in conjunction with my Reasons for Decision on the Summa Motion for Summary Judgment heard on the same day, August 11, 2017.

[20] In those reasons, I set out the legal authorities in respect of the availability of summary judgment motions in lien actions regarding the topic of leave and summary judgment. Those principles and authorities referred to in the Summa decision are equally applicable in the case at bar.

FINDINGS

[21] I find that this is an appropriate case for summary judgment. I further find that there is no genuine issue in Eramosa's lien action requiring a trial for its determination as this court can make a fair and just determination of Eramosa's lien claim on this summary judgment motion.

[22] As the record discloses, Eramosa's lien was vacated upon the posting of alternate security, namely, a lien bond by Sona.

[23] I adopt the reasoning of Perell, J. in Industrial Refrigerated Systems v. Quality Meat Packers, 2015 ONSC 4545 where the jurisdiction to grant summary judgment in a construction lien actions is discussed. As in the Industrial Refrigerated Systems case, I grant leave to bring the summary judgment motion and have said motion decided on its merits.

[24] As for Sona's Rule 48.04 argument, this argument has no merit. Proceedings under the Construction Lien Act permit the motions to be brought after the action has been set down for trial. Rule 48.04 of the Rules of Civil Procedure does not apply in this regard and no leave is required pursuant to that rule. For these reasons, Sona's arguments fail.

[25] Sona also argued based on s. 17(1) of the Construction Lien Act that the evidentiary record was deficient in our case. There was no evidence as to the amounts owed as between Sona and Selectra. Without knowing that amount, there was a genuine issue requiring a trial. Respectfully, I disagree.

[26] As in the Summa Motion for Summary Judgment, there is uncontradicted evidence from Eramosa and Selectra regarding the amount due, owing and payable to Eramosa for its supply of materials and services to the Project totalling the sum of $94,729.17. Further, the uncontradicted evidence establishes that there was no issue with the timeliness and quality of Eramosa's supply of materials and services to the Project and there were no delays or deficiencies in the said supply by Eramosa. The uncontradicted evidence, which I accept, is that Eramosa's claim for its lien is proper both as to timeliness and quantum.

[27] As in the Summa Motion for Summary Judgment, no responding materials were filed by Sona. Again, this was a deliberate and tactical decision admitted by Sona's counsel. In light of the evidence that I do have before me on this evidentiary record which I find satisfactory, Sona s. 17(1) argument fails.

[28] I find that this court has before it an evidentiary record that contains all of the evidence which the parties would present if there was a trial. This court also assumes that the parties have advanced their best respective cases. However, in this case, I find that Sona has not put its best foot forward. I find that no party should be allowed two kicks at the can by "keeping its powder dry" – this "would not be efficient, affordable, proportionate or at all fair", Industrial Refrigerated Systems, supra at para. 68 and Rahimi et al v. Hatami et al., 2015 ONSC 4266 at paras. 6 & 7.

[29] For the following reasons, I find that Eramosa is entitled to summary judgment:

(a) Eramosa's lien has been vacated upon Sona filing the appropriate security in the form of a lien bond pursuant to the order of Justice Lofchik dated August 28, 2015;

(b) Selectra supports Eramosa's motion and has confirmed under oath the timeliness and quantum of Eramosa's claim for lien;

(c) Further, under oath, Selectra has deposed that there have been no delays or deficiencies in Eramosa's supply of materials and services to the Project;

(d) Sona has offered no particulars, facts or evidence to counter the uncontradicted evidence of Eramosa that its claim for lien was timely and of the appropriate quantum.

[30] As for Sona's argument in respect of it not being named a defendant in this action, the endorsement of Regional Senior Justice Fuerst dated January 26, 2017 ordered consolidation of a number of actions outstanding in Toronto and Barrie. This is one of those actions. Sona is a party defendant in at least one of those actions. Sona delivered a Statement of Defence in this action and also obtained the order of Justice Lofchik dated August 29, 2015 vacating the registration of Eramosa's claim for lien. I find that by virtue of Regional Senior Justice Fuerst's consolidation order, this summary judgment motion ought to proceed against Sona and if an order amending the title of proceedings in this case is required to add Sona Construction Limited as a party defendant on this motion, leave to add Sona Construction Limited is hereby granted.

[31] I note that no formal order was taken out in respect of Regional Senior Justice Fuerst's order dated January 26, 2017, and this must be done.

[32] For these reasons, summary judgment is granted in favour of Eramosa Engineering Inc. against Sona Construction Limited in the amount of $94,729.17 plus pre and post judgment interest.

DISPOSITION

[33] For these reasons, Eramosa Engineering Inc. shall have summary judgment in the amount of $94,729.17 plus pre-judgment and post-judgment interest against Sona Construction Limited.

[34] Costs will be determined by way of written submissions. Eramosa shall have seven days from the date of these reasons to serve and file a one page costs summary, a costs outline, bill of costs and any relevant authorities. Thereafter, Sona shall have seven days to file any responding materials on costs consisting of a one page costs summary, costs outline, bill of costs and any relevant authorities. If reply is required, within five days after the filing of the responding materials, Eramosa shall serve and file any reply materials. All materials are to be filed with my judicial assistant at Barrie. The amount of the judgment and any amount ordered for costs shall be paid to Eramosa from the lien bond in the amount of $118,411.46 posted into court pursuant to the order of Lofchik, J. dated August 28, 2015.

G.P. DiTomaso, J.

Released: October 24, 2017