Court File and Parties

COURT FILE NO.: CV-16-562307 DATE: 20180808 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1658410 ONTARIO INC., c.o.b. as ADVANCE REPAIRS & MAINTENANCE Plaintiff/Responding Party

– and –

GREAT GULF (DUNDAS) LTD., BALANCE RESIDENTIAL MANAGEMENT LIMITED and TORONTO STANDARD CONDOMINIUM CORPORATION 2514 Defendants/Moving Parties

Counsel: Roy Tofilovski, for the Plaintiff/Responding Party Jonathan Fine, for the Defendants/Moving Parties

HEARD: June 15, 2018

LEDERER J.

INTRODUCTION

[1] This is a motion for summary judgment. The action is not proceeding against the third defendant, Great Gulf (Dundas) Limited (hereinafter “Great Gulf”).

[2] The plaintiff, 1658410 Ontario Inc. carries on business under the name Advance Repairs & Maintenance (hereinafter “Advance”). On February 1, 2016, a service provider agreement was entered into between Great Gulf as the declarant of the condominium [1] and Advance. On April 25, 2016, Toronto Standard Condominium Corporation 2514 (hereinafter “TSCC 2514”) assumed the obligations of Great Gulf under the service provider agreement. The contract concerned the provision of janitorial services (cleaning and maintenance) by Advance to the building involved. [2] The agreement provided the client, in this case, TSCC 2514, with the right to end the contract:

19. RIGHT TO TERMINATE CONTRACT

(a) The Client may terminate this agreement at any time prior to completion of the Work as follows:

(i) Subject to Section 112 of the Condominium Act 1998, if applicable, upon delivery to the Service Provider of thirty (30) days written notice that the Client, in its absolute and arbitrary discretion, has elected to terminate this Agreement; or

(ii) immediately upon notice to the Service Provider that the client has elected to terminate this Agreement because:

1. An Event of Default has occurred; or

2. an Event of Default has occurred and continues to exist. [3]

[3] By letter dated September 6, 2016, TSCC 2514 terminated the Service Provider Agreement. The letter listed various matters said by TSCC 2514 to be cause for the termination as provided for in the Agreement. In response, on October 17, 2016, Advance commenced this action by Statement of Claim. In it Advance asserts claims for damage for:

1. there being no cause for the termination, payment for 30 days’ notice that was not provided,

2. unpaid invoices,

3. interest on the amounts owing under those unpaid invoices,

4. general damages associated with the breach of contract, the manner in which it was effected, as well as for loss of business reputation, inconvenience, and lost time and effort,

5. the hiring of an employee of Advance by the new service provider to work at another location,

6. the loss and damages to property (equipment and material) of Advance,

7. slander and injurious falsehood said to have damaged the reputation of the plaintiff in the construction, development and building-services community, and

8. breach of a verbal contract committing to engage Advance to provide cleaning and superintended services at another condominium.

SUMMARY JUDGEMENT

[4] In the now seminal case of Hyrniak v. Mauldin, 2014 SCC 7 the Supreme Court of Canada made clear that the right to trial is no longer the default means by which civil disputes are to be resolved in our courts. That case calls for a “culture shift” [5]. The opportunity to resolve these disputes through motions for summary judgement represents the predominant means for more expeditious resolution. Civil proceedings are to proceed to trial only if there is an issue “requiring a trial”. [6] In a proceeding for summary judgement the party opposing this form of determination is not permitted to hold back. Such motions are not to be resolved on the promise of evidence to be produced or damages to be demonstrated at trial. In the vernacular, the parties on such motions are obliged to “put their best foot forward” or “play trump or risk losing”. Even the weighing of evidence, credibility concerns and the drawing of inferences from the evidence are not necessarily reserved for determination at a trial. [7]

LIMITS TO LIABILITY IN THIS CASE

[5] The Service Provider Agreement limits liability that may be awarded upon its breach:

PROTECTION OF WORK AND PROPERTY

The Service Provider assumes sole responsibility for all persons engaged or employed in respect of the Work and shall take all reasonable and necessary precautions to protect persons and property from injury or damage. The Client and Property Manager, their respective subsidiaries, associated, affiliated and beneficiary companies or entities, and their respective officers, directors, employees, members and managers, agents or subcontractors shall not be responsible in any way for any injury to or the death of any of the Service Provider’s employees or contractors, loss of, or damage to, any property in any way including loss of business or profits. The Service Provider shall indemnify and save harmless the Client and Property Manager, their respective subsidiary, affiliated or associated companies or entities and their officers, directors, employees, agents, members, agents or contractors against all claims, losses, liabilities, demands, suits and expenses from whatever source, nature and kind in any manner based upon, incidental to or arising out of the performance or non-performance of the contract by the Service Provider or any of its employees, agents or contractors. [8]

[Emphasis added]

[6] At the hearing it was submitted on behalf of the two remaining defendants (TSCC 2514 and Balance) that, as a result of this section of the Service Provider Agreement, neither of them would be held liable for any loss of profit suffered by the plaintiff (Advance). The Factum filed on their behalf extends the argument beyond lost profits to include any loss of business as well as any loss or damage to property. If upheld, this clause would respond to a significant number of the damage claims.

[7] This is not the only clause in the Service Provider Agreement that limits the liability of the client. The latter portion of clause 19(c) states:

… Upon the termination of this Agreement and payment as required hereunder, the Client shall have no further obligation or liability to the Service Provider in connection with this Agreement or its termination and may as a condition of the final payment hereunder require the Service Provider to execute and deliver a full, unconditional and irrevocable release and discharge in favour of the Client with respect to full payment for the Work rendered by the Service Provider hereunder and any further obligation or liability to the Service Provider. [9]

[8] Despite the limitations on liability, I proceed beyond these paragraphs of the agreement.

ANALYSIS

[9] I will consider each of the individual claims made in the Statement of Claim and listed above:

1. (Claim for 30 days notice)

[10] Advance was initially terminated for cause. Hence, the termination took place relying on clause 19(a)(ii). No notice was given. The 30 day notice period called for by clause 19(a)(i), when cause is not relied on, was not provided. In their factum and at the hearing Balance and TSCC 2514 indicated that they were prepared to consent to judgement for the damages sought as a result of the loss associated with the absence of the 30 day notice period. Counsel for these two defendants went to some lengths to make clear that no concession was being made that cause was, in fact, absent simply that it was not being relied on for the purpose of assessing damages. For the purposes of this motion there is no reliance on cause as the rationale for the termination of the contract. Any loss or damage caused by the termination initially being based on the presumption that cause was present will have to be paid as part of the resolution of this motion for summary judgement.

[11] The damage or the loss associated with the absence of notice is $5,940. The Statement of Claim is clear; no HST is claimed in respect of this amount. [10] Any order made for summary judgement will require that this sum be paid.

2. (unpaid invoices)

[12] In circumstances where termination is not for cause, s. 19(a)(i) of the Service Provider Agreement applies. The client, in this case being TSCC 2514, is obliged to pay any outstanding invoices representing work done by the service provider, in this case Advance. This is made clear by the first portion of s. 19(c) of the Service Provider Agreement:

Where this Agreement is terminated pursuant to Section 19(a)(i) above, the Client shall pay to the Service Provider all amounts due thereunder, if any, up to and including the effective date of termination and such termination costs, if any, as agreed upon by the Client and the Service Provider... [11]

[13] The claim for unpaid invoices is made up of:

• cleaning services for the first five days of September 2016 – $1,487.83 (inclusive of HST)
• provision of extra staff on August 30, 2016 – $79.10 (inclusive of HST), and
• superintendent services for the first five days of September 2016 – $749.53 (inclusive of HST).

[14] The total claim for unpaid invoices is $2,316.46. The defendants acknowledged that this amount should be paid. Any order made for summary judgement will require that this sum be paid.

3. (interest on the amounts owing under those unpaid invoices)

[15] In its Statement of Claim, Advance claims interest with respect to the unpaid invoices, at a rate of 2% per annum: $2,817.60. For their part TSCC 2514 and Balance do not contest that this amount should be paid. It stands to reason that the $2,817.60 will have to be adjusted on account of the passage of time since the Statement of Claim was issued.

[16] In the Factum filed on behalf of Advance a further claim is made for interest on unpaid invoices. The invoices in respect of which this claim is made have been paid but were not paid at the time payment was required. Their late payment calls for interest in the amount of $134.24. When this was raised by the Court counsel for the Balance and TSCC 2514 indicated that his clients would not contest this claim or the amount. Any order made for summary judgement will require that this sum be paid.

4. (general damages associated with the breach of contract, the manner in which it was effected as well as for loss of business reputation, inconvenience, and lost time and effort)

[17] The analysis of this aspect of the claim begs the following question: what breach of contract is being referred to? The only “breach” noted is that at the time of the termination the defendants relied on cause when as matters now stand they do not. The liability specifically attributable to this change is the value of the 30 days notice that was initially denied but is now conceded. If there is any doubt about this, to my mind it should be set to the side as a result of the further limitations found in sections 10 and 19(c) of the Service Provider Agreement (see paras. [5], [7] and [12] above).

[18] By these clauses the Service Provider (Advance) is solely responsible to protect its property from damage. The client and the property manager (respectively TSCC 2514 and Balance) are specifically not liable for loss or damage to any property including loss of business or profits. Moreover, once the client (TSCC 2514) has paid for whatever work the Service Provider has performed under the contract, it can have no further obligation to the Service Provider. All of this being so, by the contract there is not further liability assessable against the client (TSCC 2514) or the property manager (Balance) in furtherance of any damage supposed to have been the result of any breach of the agreement.

[19] Even if this is wrong what is the damage that is to be assessed? It is said that as a result of the period when the general perception was that the Service Provider (Advance) was terminated for cause, this fact hurt Advance in the marketplace and, as a result, it lost work. What work? In his affidavit sworn in response to this motion for summary judgment Mario DaMicheli, the “owner” of Advance referred to four contracts he says were “lost” [12]:

1. Advance bid for the cleaning contract with a project identified as “Minto Sky”. The bid was unsuccessful. Mario DaMicheli attributes this failure to information he received from Mohammed Sadegh, at the time an employee of Advance and the superintendent at the condominium in question when the bid was made. The basis for claim that general damages for breach of contract should be assessed against TSCC 2514 and Balance is the advice Mohammed Sadegh provided in which he said that Suzanne Toole, an employee of Balance and the superintendent at TSCC 2514, “influenced the Minto Sky Board President not to choose” the bid made by Advance. This is repeated in an affidavit sworn by Mohammed Sadegh. He says he knows that Suzanne Toole “influenced” the decision in this way because, at a meeting both she and he were present at, Suzanne Toole “indicated that Advance should not be awarded the cleaning contract because Advance was not good at providing cleaning services”.

2. In his affidavit Mario DaMicheli goes on to depose that at the time of the failed bid “we had the superintendent contract at that building [Minto Sky]… We have since lost the superintendent contract as well.” No independent or separate reason is provided.

3. Mario DaMicheli deposes that Advance had the contract for cleaning and superintendent services at Pinnacle, a building located at 295 Adelaide Street West in the City of Toronto. The contract was terminated “because of the close relationship between the property manager at the building and [a person named and identified as Suzanne Toole’s boyfriend]”. Why this relationship had the impact alleged is not explained although the allegation is taken up in the claim for slander that is reviewed later in these reasons.

4. The fourth contract referred to is at “HOT Condo - Mississauga”. Mario DaMicheli, in his affidavit, states that he was told by Domenic Chiarini (identified as Regional Director of Balance [13]) that Pina Perone, the part-time manager at HOT Condo had advised its Board of Directors that she felt more comfortable with Whiterose (a competitor of Advance). Mario DaMicheli was apparently advised by Domenic Chiarini that the views expressed by Pina Perone were based on negative feedback given by Suzanne Toole. The reliability of this evidence has to be measured against the fact that it stands as double hearsay. More importantly it is difficult to see how this can be associated with any breach of contract arising from the termination of the contract with TSCC 2514 because the “negative feedback was given before [the] termination at PACE.” PACE is the name of the building operated by TSCC 25154. [14]

[20] None of these four opportunities, if that is what they were, assist Advance in its claim for general damages for breach of the Service Provider Agreement. Two of them are associated with personal relationships that are said to have had a negative impact. One refers to another contract that was terminated but the evidence does not explain the circumstances or attribute it in any way to the asserted breach of contract. The fourth relies on double hearsay and, in any case the comments supposed to have been made were expressed before the contract said to have been breached was terminated which is to say before any suggested breach could have occurred.

[21] Advance does raise another claim for damages that it says arises from the supposed breach of the Service Provider Agreement. This claim is demonstrated by the initial reliance and subsequent withdrawal of cause as the catalyst for the termination. Advance says it lost “time and effort”. This was time that was taken up, after the termination, moving supplies and equipment. This is said to have taken extra time and required other tasks at other clients to be dropped to deal with the “crisis at hand”. [15] In the course of his submissions, counsel for Advance acknowledged that the other work was delayed but not lost. I add that the clean up and withdrawal from the site was work that, in the normal course, would have been taken up and completed within the 30 day notice period. Pursuant to the concessions made by TSCC 2514 and Balance payment for that period will now be made. To make an award as claimed for “lost time and effort” would duplicate a part of that payment. There is no issue arising from the second quotation from s. 19(c) of the Service Provider Agreement (see para. [12] above). There was no agreement between the parties as to any termination costs.

[22] There is no issue arising from the claim for general damages for breach of contract that requires a trial.

5. (the hiring of an employee of Advance by the new service provider to work at another location)

[23] At or about the time of the termination of Advance one of its employees was hired away by the cleaning company referred to in the material as Whiterose. The employee had worked for Advance at the condominium operated by TSCC 2514. Whiterose replaced Advance as the provider of cleaning services at the condominium. Whiterose hired the employee but engaged him to work at another site. Advance alleges that this is the demonstration of another breach to the Service Provider Agreement. Schedule A of the agreement states, in part:

The Management and the Board of the Directors or any further contractor of the above parties of address and location on this contract agree and advise that they will not hire the current or previous staff of Advance Repairs & Maintenance for a period of six month further to the termination of this contract or during this contract. Please be advised all Advance Employees have signed this Legal policy with Advance Repairs & Maintenance Advance Repairs & Maintenance and all our team Work Very Hard to establish a Site. this contract is submitted as per request on behalf of the party one of the contract.

[24] The grammatical and structural errors found in this paragraph including the repetition of “Advance Repairs & Maintenance” found at the end of the fifth line and running into the sixth line are in the original. It is difficult to discern the purpose behind this paragraph. It appears, and the parties suggest, that it imposed a duty on TSCC 2514, Balance and any other contractors providing services to TSCC 2514 not to hire any of the employees of Advance while it had a contract with that condominium or for six months after any such contract is terminated. [16] It is this provision that Advance says was breached when Whiterose hired the employee referred to above.

[25] Neither management (being Balance) nor the Board of Directors (being TSCC 2514) hired the employee in question. It may be that Whiterose which did hire the employee is “any further contractor” as referred to in the clause quoted above. Certainly, that is the view of those representing Advance. [17] But despite the content of the clause it cannot bind Whiterose which was not a party to the Service Provider Agreement in issue and, in any event, is not a party to this action. Advance relies on its stated desire to continue to employ the individual in question. Advance alleges it was “…denied this opportunity in that Whiterose spoke with [the employee] before Advance ever had a chance to speak with him and offer him continued employment.” [18] As phrased in the Statement of Claim, this had nothing to do with either of the defendants (Balance or TSCC 2514). In its Factum Advance submits that the employee gave no notice and therefore was in breach of his contract of employment. [19] If this is true it would require a law suit against the employee. He is not a party to this action.

[26] In any case the employee swore an affidavit. It tells a different story as to his relationship with Advance than the one which is implied from the evidence of Mario DaMicheli. Advance and its representatives were not interested in speaking with the employee. The termination letter indicates that two employees would be offered work “with the new company that will be taking over”. [20] No objection was made at the time and no concern demonstrated. The individual was not treated as a valued employee. At the outset of his employment he worked seven days a week. The supplies necessary to do the job were not provided. When he was “promoted” to supervisor his income was not increased. He was never paid vacation pay and not given the training he felt was required. [21] He was not interested in remaining in the employ of Advance. Mario DaMicheli was “a terrible boss”. [22] At some point after the Service Provider Agreement was terminated Mario DaMicheli threatened the employee. They ran into each other on the street. Mario DiMicheli told the employee: “From now on watch your back, I know where you live, and I know where you work.” [23] In the face of this evidence it is clear that Adavance demonstrated no concern for the employee.

[27] Whether Advance wanted to keep the employee on or not, the decision to leave was his. He did not want to stay. He was offered a better job with prospects for better treatment and a better salary. The employee deposed that he was willing to leave Advance months before the termination of the Service Provider Agreement. [24] In its Statement of Claim, Advance says that Balance facilitated the resignation of the employee. No details are provided in the Statement of Claim. All that is stated is the bald allegation associated with the claim that this supports an action for “inducement to breach a contract” and “intentional interference with economic interests by unlawful means.” [25] For his part the employee depicts a situation where he was introduced to representatives of Whiterose, complimented on his work by the property manager and offered a job. He is clear in his evidence: “The fact that Whiterose’s associates arrived at the Site minutes before Advance’s associates on September 6, 2016, had nothing to do with my desire to switch to another cleaning company.” [26]

[28] I point out that little was said of the legal requirements of either the tort of inducing breach of contract, or the tort of intentional interference with economic relations. A claim for the former is satisfied when:

1. a valid and enforceable contract exists;
2. the defendant was aware of the existence of the contract;
3. the defendant intended to and did procure a breach of the contract; and
4. the plaintiff suffered damages as a result of the breach. [27]

[29] The tort of intentional interference with economic relations has narrow applicability. It has three elements:

1. the defendant must have intended to injure the plaintiff’s economic interests;
2. the interference must have been by illegal or unlawful means; and
3. the plaintiff must have suffered economic harm or loss as a result. [28]

[30] The requirements for these torts are not satisfied on the evidence that has been presented. I note that there is no demonstrable loss that has been suffered by Advance as a result of the employee moving elsewhere. He left after the termination of the Service Provider Agreement. He was replaced within two weeks. [29] It was acknowledged that he was free to leave the employment of Advance at anytime. [30]

6. (the loss and damages to property (equipment and material) of Advance)

[31] In the course of his submissions to the Court, counsel for Advance withdrew this claim.

7. (slander and injurious falsehood said to have damage the reputation of the plaintiff in the construction, development and building-services community)

[32] There are five separate allegations said, on behalf of Advance, to be demonstrative of slander causing damage to its reputation and standing in the construction, development and building-services community. The Statement of Claim outlines them, as follows:

This slander comprises the following:

a. One or more of the defendants threw, or cause to be thrown, onto the street, without good reason or provocation, the equipment and supplies of the plaintiff. The street is a public domain, open for all to see.

b. One or more of the defendants called, or caused to be called, the Toronto Police Service, without good reason or provocation to attend at the PACE building to deal with Mario DaMicheli as an alleged trespasser. Given all of the circumstances (the summary termination of the Agreement, etc.), Mr. DaMicheli was not in any way a trespasser. The Toronto Police officers dealt with Mr. DaMicheli in the public domain, open to public view.

c.-i The building manager at PACE at the time in question, Suzanne Toole, disparaged the plaintiff and its business to her boyfriend (named Angelo), and to others in the construction, development and building maintenance industry. These disparaging remarks are false. Her direct disparagement of the plaintiff continues.

c.-ii Her boyfriend works as a site foreman for a developer named Pinnacle. He also disparaged the plaintiff and its business to others in the construction, development and building maintenance industry. His disparaging remarks are also false, and this disparagement continues.

d. Suzanne Toole, Pina Perone and an unknown construction worker (on-site employee of Great Gulf (Dundas) Ltd. made disparaging statements about the plaintiff company. The statements were made to Mario DaMicheli and were made in a public setting where other people were present and could and in fact did, hear the statements. The statements were as follows;

Advance is a bad company.

It is horrible to deal with.

It does not have any supervisor or supervision in the company, and does not come to the site every day.

The property manager likes white rose better.

The property manager does not like Mario DaMicheli

Whiterose should have received the contract from day one. [31]

[33] With reference to subparagraph (a) Suzanne Toole, in her affidavit, contrary to what is deposed by Mario DaMicheli in his, says that nothing was thrown onto the “street”. The plaintiff removed the equipment shortly after receiving the termination letter. [32] This is confirmed by the affidavit of the now former employee who deposes that he witnessed Mario DaMicheli taking a large green bin with wheels from the compactor room at the site. The bin contained Advance’s cleaning equipment. It contained a power washer, a shop vacuum, cleaning tools, odour spray granules, ear protection equipment, goggles and gloves. [33] There is a further confirmation of this in the affidavit of Pina Perone who swears that she saw Mario DaMicheli “…move Advance’s supplies and equipment from the site on September 6, 2016.” [34]

[34] With reference to subparagraph (b) the police were called because Mario DaMicheli was angry, aggressive and verbally abusive to Suzanne Toole and to Pina Perone. He caused a disturbance in the lobby of the building. This was recorded on incident reports which were included as exhibits to the Affidavit of Suzanne Toole. [35] It was confirmed by the former employee who says that he witnessed Mario DaMicheli confronting Suzanne Toole. Mario DaMicheli was shouting and screaming. He “… exploded at Ms. Toole and was out of control.” [36]

[35] With reference to subparagraph (c.-i) Suzanne Toole deposed that she never made disparaging remarks about Mario DaMicheli to her boyfriend or to others in the construction, development and building industry. [37] There is no evidence that would confirm the allegation that this supposed disparagement continues.

[36] With reference to subparagraph (c.-ii) the boyfriend of Suzanne Toole provided an affidavit. In it he denies ever disparaging “…the plaintiff to others in the construction, development and building maintenance industry or otherwise.” [38] The boyfriend was cross-examined but not as to this point.

[37] In his affidavit, Mario DaMicheli asserts that he has information from two persons who were the recipients of the supposedly disparaging comments:

I was informed of the slanderous statements made by Angelo by two persons named Aldy and Klodian, who are the owners of Absolute Interiors (a construction contractor at the building), and I verily believe, that [the boyfriend of Suzanne Toole] told them that [his] girlfriend (Suzanne Toole) had told [her boyfriend] that Advance had been thrown out of the PACE building due to bad service and not being a good company. [39]

[38] This is hearsay. The danger in relying on such evidence is demonstrated by the fact that subsequent to swearing his affidavit Mario DaMicheli admitted that he was not so advised by Aldy. The other witness Klodian Cibuku was examined pursuant to Rule 39.03 of the Rules of Civil Procedure. He testified that no one ever told him that Suzanne Toole had told her boyfriend that Advance had been thrown out of the PACE building due to bad service. Klodian Cibuku further denied ever having advised Mario DaMicheli that the alleged comments had been made.

[39] With reference to subparagraph (d) Suzanne Toole denies having made the specific statements referred to although she did make critical comments in written communications that were sent to the plaintiff but not to others in the context of advising the plaintiff that its performance was below an acceptable level. [40] Moreover, the confrontation where it is alleged the statements were made occurred on September 6, 2016, in a hallway of the condominium building. Mario DaMicheli asked Suzanne Toole “what happened? - Why is this happening?” These questions were asked in reference to the termination of the Service Provider Agreement. When Mario DaMicheli asked these questions, he knew others were within earshot and would hear what was being said. It was in response to these questions that it is alleged Suzanne Toole made the comments complained of. When cross-examined, Mario DaMicheli said that Suzanne Toole repeated these words in an elevator in front of the same people who could have heard the initial comments made in the hallway. [41]

[40] I am unprepared to find that any of these allegations are demonstrative of a claim for slander that manifests an issue requiring a trial. I find that the equipment was not thrown out or onto the street. There is independent evidence that it was taken by Mario DaMicheli. The claim for damages associated with lost or damaged equipment was withdrawn. There is independent evidence that the police were called as a result of the aggressive and unruly conduct of Mario DaMicheli. Both Suzanne Toole and her boyfriend deny having disparaged Mario DaMicheli or Advance. The response of counsel for Advance to these statements is that they strain credibility. How could people in a close relationship, both in the same business not have discussed this? I prefer to note that no person to whom these disparaging comments were made has been properly identified or provided evidence confirming that they were made. Finally, any comments made on the occasion of the termination of the Service Provider Agreement were made in the presence of Mario DaMicheli and in response to questions he asked.

8. (breach of a verbal contract committing to engage Advance to provide cleaning and superintended services at another condominium)

[41] This allegation is separate from and occurred years before the termination of the Service Provider Agreement. On behalf of Advance, it is said that Alan Auyang (Vice President of Balance) verbally promised Advance, even before it entered into the Service Provider Agreement for the PACE building, it would also receive the cleaning and superintendent contract at a new high-rise condominium known as “One Bloor”. The alleged undertaking was made at a meeting which took place at a restaurant. [42] It was submitted that the statements made comprised a verbal contract. The Factum filed on behalf of Advance explains this in two ways. On the one hand, it is said that the consideration provided by Balance to Advance was the promised “One Bloor” contract and the consideration provided, in return, by Advance was its undertaking to enter the Service Provider Agreement. On the other hand, it is said the “One Bloor” contract was a unilateral contract. [43] It cannot be both. I am not prepared to find that consideration for entering one contract is the entry into another contract when there is no asserted benefit to either of the two condominiums. Were they to get a better price or more services for the same price? As it stands, these would have been two independent contracts, one with one condominium and the other with another. Alan Auyang swore an affidavit. For his part, Alan Auyang denies that any promise was made: “What was stated during the meeting was that if Advance performed well at the site, Balance would include Advance for consideration within Balance’s management portfolio.” Its next property launch was to be “One Bloor”. [44] This is a more reasonable explanation. I prefer the evidence of Alan Auyang. In any event, I do not accept that any unilateral promise was made. This was nothing more than an inducement to do a good job. If that happened there was the prospect of more work for Advance. Even if this is wrong, at its highest, this was an agreement to agree and is not enforceable as a contract. The Service Provider Agreement is a substantive indication of the detail that would be required in any binding service provider contract: the services to be provided would have to be outlined, the responsibility of the parties made clear and the cost provided for. A general discussion in a restaurant is not enough.

CONCLUSION

[42] I award summary judgement, but only for those items conceded by the defendants as follows:

1. For the 30 day notice period: $5,940.00
2. For the unpaid invoices: $2,316.46
3. For interest on the unpaid invoices: $2,817.60
4. For interest on the late invoices: $134.24

Total: $11,208.30

[43] I award pre and post judgment interest at the rate of 2%

COSTS

[44] If the parties are unable to agree as to costs I will consider written submissions on the following terms:

1. On behalf of the plaintiff, no later than 15 days after the release of these reasons. Such submissions to be no longer than three pages double spaced, not including any Bill of Costs, Costs Outline or case law that may be referred to.

2. On behalf of the defendants no later than 10 days thereafter. Such submissions to be no longer than three pages double spaced, not including any Bill of Costs, Costs Outline or case law that may be referred to.

3. On behalf of the plaintiff, in reply if necessary, no later than five days thereafter. Such submissions to be no longer than one page double spaced.

Lederer J.

Released: August 8, 2018

Footnotes

[1] The Condominium Act, 1998, S.O. 1998, c. 19 at s. 1 defines “declarant” to mean:

“declarant” means a person who owns the freehold or leasehold estate in the land described in the description and who registers a declaration and description under this Act, and includes a successor or assignee of that person but does not include a purchaser in good faith of a unit who pays fair market value or a successor or assignee of the purchaser.

A declaration and description that can be registered by a declarant in furtherance of creating a residential condominium corporation.

[2] Schedule “A” of the Service Provider Agreement outlined the services to be provided.

[3] Service Provider Agreement, s. 19(a). The agreement at s. 19(b) goes on to define “Event of Default”:

(b) For the purposes hereof, an “Event of Default” shall be deemed to occur if:

(i) the Service Provider is in breach of any covenant, obligation or representation hereunder and such breach continues for a period of two (2) days after delivery of notice to the Service Provider specifying such breach;

(ii) the Service Provider fails to commence, perform or complete the Work or any part thereof, in accordance with the commitment, performance and completion dates established pursuant to, without limitation to this Agreement;

(iii) The Client, acting reasonably, determines that the Service Provider will not complete the Work, or any part thereof, in accordance with the milestones established for the Work or any part thereof and such failure to meet the milestones or performance schedule is, in the reasonable opinion of the Client, not due to events or circumstances beyond the Service Provider’s control;

(iv) The Client, acting reasonably, determines that the Service Provider, or any agent or any employee thereof, has acted or is acting in a manner detrimental to the Client or the Project Manager;

(v) If the Service Provider becomes bankrupt or makes a general assignment for the benefit of the creditors, or if a Receiver of its undertaking or any part thereof is appointed by a court or otherwise, or if the Service Provider does not supply enough properly skilled employees, agents or contractors or proper materials, or otherwise contravenes this Agreement;

(vi) The Client, acting reasonably, determines that the Service Provider is failing, in a material way, to comply with the performance requirements set out herein.

[4] Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87; 366 DLR (4th) 641; 453 NR 51; 314 OAC 1; [2014] EXP 319; 21 BLR (5th) 248; 12 CCEL (4th) 1; AZ-51036908; [2014] CarswellOnt 640; JE 2014-162; [2014] SCJ No 7 (QL); 37 RPR (5th) 1; [2014] ACS no 7; 27 CLR (4th) 1

[5] Ibid at paras. 2 and under the heading “Access to Civil Justice: A Necessary Culture Shift” at paras. 28 and 32

[6] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states:

(2) The court shall grant summary judgment if,

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

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

[Emphasis added]

[7] Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states:

(2.1)In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[8] Service Provider Agreement, s. 10

[9] Ibid, s. 19(c)

[10] Amended Statement of Claim at para. 17

[11] Service Provider Agreement, s. 19(c)

[12] Affidavit of Mario DaMicheli, sworn February 5, 2018, at para. 23

[13] Ibid at para. 30

[14] All of the information concerning the four “lost” contracts and the quotations noted are found at para. 23 of the Affidavit of Mario DaMicheli.

[15] Statement of Claim at para. 25

[16] The Factum filed on this motion on behalf of the defendants, at para. 32, quotes this paragraph as follows but there is no reference to where this version can be found except to refer to it being included in the Service Provider Agreement:

The Management and the Board of Directors or any further contractor of the above parties or address and location on this contract agree and advise that they will not hire the current or previous staff of Advance Repairs & Maintenance for a period of six months further to the termination of this contract or during this contract.

[17] Amended Statement of Claim at para. 20

[18] Ibid at para. 19.

[19] Respondent’s Factum at para. 26.

[20] Affidavit of Suzanne Toole, sworn January 26, 2018, at Exhibit D (Letter dated September 6, 2016).

[21] Affidavit of Leopoldo Astudillo, sworn January 26, 2018, at paras. 8, 9, 10 and Exhibit A and Reply Affidavit of Leopoldo Astudillo, sworn February 15, 2018, at paras. 7, 8 and 9

[22] Ibid (Affidavit) at para. 7

[23] Ibid at para. 15

[24] Reply Affidavit of Leopoldo Astudillo, sworn February 15, 2018, at para. 5(b)

[25] Respondent’s Factum at para. 20a

[26] Reply Affidavit of Leopoldo Astudillo, sworn February 15, 2018 at para. 5b

[27] Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, 86 O.R. (3d) 431; 282 D.L.R. (4th) 644; 223 O.A.C. 350; 48 C.C.L.T. (3d) 119

[28] Grand Financial Management v. Solemio Transportation Inc., 2016 ONCA 175, 395 DLR (4th) 529

[29] Cross-examination of Mario DaMicheli at Q. 77-78

[30] Ibid at Q. 18-20, 29-64 and 79-92

[31] Amended Statement of Claim at para. 29 This is all repeated in the Affidavit of Mario DaMicheli, sworn February 5, 2018, at paras.21 and 22.

[32] Affidavit of SuzanneToole, sworn January 26, 2018, at para. 53 (a)

[33] Affidavit of Leopoldo Astudillo, sworn January 26, 2018, at paras. 13 and 14

[34] Affidavit of Pina Perone, sworn February 15, 2018, at para.4

[35] Affidavit of Suzanne Toole, sworn January 26, 2018, at para. 53 (b) and Exhibit “H”

[36] Affidavit of Leopoldo Astudillo, sworn January 26, 2018, at paras. 11 and 12. In response to these allegations counsel for the plaintiff requested that I review security footage provided on a DVD as Exhibit A to the Reply Affidavit of Mario DaMicheli. I have done so. There are segments where no one is present, others where people are milling around and still others where police are present. There is nothing that would lead me to set aside the evidence found in the affidavits. Finally, I should observe that the 9th of the 13 video segments froze and I was unable to watch it all.

[37] Affidavit of Suzanne Toole, sworn January 26, 2018 at para. 53 (c)

[38] Affidavit of Angelo Vilardo, sworn January 26, 2018, at para. 3

[39] Affidavit of Mario DaMicheli, sworn February 5, 2018, at para. 22(c)

[40] Affidavit of Suzanne Toole, sworn January 26, 2018, at para. 53 (e).

[41] Cross-examination of Mario DaMicheli at Q. 442-446 and Cross-examination of Reza Nabhani at Q. 1-37

[42] Affidavit of Mario DaMicheli, sworn February 5, 2018, at para. 26 and Affidavit of Reza Nabhani, sworn February 5, 2018, at para. 9

[43] Respondent’s Factum at para. 36

[44] Affidavit of Alan Auyang, sworn February 14, 2018