Court File and Parties

COURT FILE NO.: 28 36/16 DATE: 2018/08/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1732467 Ontario Inc., 2501723 Ontario Inc., Scott W. Oliver, and Ian Poss o/a Forest City Access Plaintiffs (Defendants by Counterclaim)

– and –

Fred Giessler Electrical Ltd., F. Giessler Electrical Contractors Inc. and Fred Giessler Defendants (Plaintiffs by Counterclaim)

COUNSEL: M. Polvere, Counsel for the Plaintiffs (Defendants by Counterclaim) S. Draper, Counsel for the Defendants (Plaintiffs by Counterclaim)

HEARD: February 23, 2018

BEFORE: McArthur J.

Introduction

[1] The defendant corporations contracted to install solar panels for Frankensolar America Inc. (“FSA”) at various project sites throughout southern Ontario. Jeff Reeder was the project manager for the defendant companies. He hired, amongst others, Ian Poss and Scott Oliver to provide labour, services and equipment for these projects. The plaintiffs each claim moneys owing from the defendants for work done at the various sites.

[2] Mr. Giessler submits that his companies were removed from both projects by FSA due to Mr. Reeder not doing a proper job. Mr. Reeder maintains that any deficiencies of Mr. Poss or Mr. Oliver were authorized by him and under the specific direction and guidance of the defendants and Mr. Giessler who made the ultimate decisions.

[3] The plaintiffs collectively seek summary judgment against the defendants for total payment of $81,306.14 and the dismissal of the defendants’ counterclaim. Each plaintiff seek summary judgment against the defendants as follows:

a. Mr. Poss as against the defendants for $35,223.15 for services, products and rentals;

b. Mr. Oliver against the defendants for $19,209.44 for labour, services and equipment; and

c. 1732467 Ontario Inc. and 2501723 Ontario Inc. against the defendants in the amount of $26,873.55 for labour and services as the project manager.

[4] The plaintiffs submit the defendants are liable, jointly and severally, and used the defendant corporations as a shield to shelter assets, evade creditors and pay debts. The defendants deny this.

[5] The defendants seek by counterclaim as follows:

a. by F. Giessler Electrical Contractors Inc. (“FG2”), damages against the plaintiffs for negligence, gross negligence, breach of contract, loss of profits, outstanding amounts owing to suppliers and FG2 and unrecovered overhead costs in the amount of $845,000; and

b. by Fred Giessler Electrical Limited (“FG1”) damages against the plaintiffs, except Mr. Poss, for damages for negligence, gross negligence, breach of contract, loss of profits, outstanding amounts owing to suppliers and subcontracts and unrecovered overhead costs in the amount of $20,000.

[6] The defendants have also brought a Third Party Claim against Jeff Reeder personally for damages as referred to in the preceding paragraph.

Factual Background

[7] Fred Giessler Electrical Ltd. (“FG1”) and F. Giessler Electrical Contractors Inc. (“FG2”) are corporations of which Fred Giessler is the principal, director and controlling mind. FG1 and FG2 had contracted with FSA to be the general contractor to install solar panels at various projects and sites in southwestern Ontario.

[8] There were two projects: (1) the School Solar Project where FG2 was to install roof-top solar panels on 25 schools in the Greater Essex County District School Board (“School Solar Project”) and (2) the Field Solar Project where FG1 was to install solar panels in field solar projects in Glencoe, Strathroy and Dresden.

[9] The plaintiffs, 1732467 Ontario Inc., and 2501723 Ontario Inc. were trade contractor corporations that Jeff Reeder owned, controlled or were involved with. Through these companies, Mr. Reeder acted as the project manager for the defendants at the various job sites and projects. He was in charge of the day to day operations at these sites.

[10] The plaintiffs, Scott Oliver and Ian Poss, were hired by Mr. Reeder under instruction from Mr. Giessler to supply labour, services and materials to the job sites. Mr. Oliver supplied services to both projects. Mr. Poss supplied scaffolding, hoarding and other materials and other services only to the School Solar Project sites.

[11] As a result of a number of difficulties, FSA and the Giessler companies had disputes and eventually came to terms to end their relationships in the late summer of 2016. The defendants allege the difficulties were due to the negligence of all of the plaintiffs and that the defendant companies suffered substantial losses as a result.

[12] It was admitted by the defendants that Mr. Poss was hired to complete the remaining sites of the School Solar Project for FSA.

The Proceedings

[13] In November 2016, the plaintiffs collectively commenced this proceeding. Pleadings since have been served and filed by the parties.

[14] The court received the affidavits of Jeff Reeder sworn August 27, 2017 and January 22, 2018, the affidavits of each of Ian Poss and Scott Oliver sworn August 27, 2017, the affidavits of Fred Giessler sworn December 20, 2017 and February 7, 2018 along with the February 8, 2018 examination transcripts of each of the plaintiffs.

The Position of the Parties

[15] The plaintiffs request summary judgment against the defendants for the amounts claimed and to dismiss the defendants’ counterclaims on the basis that there are no genuine issues that require a trial.

[16] Counsel for the defendants submits that summary judgment is premature, there are factual issues in dispute and conflicts in the evidence, and that the counterclaim, third party claim and defence of equitable set-off requires trial amongst the various parties.

[17] For reasons that follow, partial summary judgment shall be granted only involving the claims of Mr. Poss and Mr. Oliver.

The Law and Legal Principles

Summary Judgment

[18] Summary judgment motions are governed by Rule 20.04 which provides:

(2) The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence…

(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.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[19] The principles for summary judgment motions established from the leading cases can be summarized as follows:

1. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before the judge, without using the new fact-finding powers. The judge must ask (1) On the basis of the evidentiary record alone, are there genuine issues that require a trial? and (2) Does the evidentiary record provide the evidence needed to fairly and justly adjudicate the dispute?

2. The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the evidentiary onus shifts to the responding party to establish that there is a genuine issue requiring a trial.

3. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial and must take a hard look at the evidence and the merits of the action at this preliminary stage. A party must put its best foot forward, lead trump or risk losing.

4. A responding party must set out in affidavit material or other evidence specific facts that establish that there is a genuine issue requiring a trial and cannot rest on mere denials of allegations of a party’s pleading.

5. There will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).

6. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

7. The judge may exercise discretion and use the expanded powers provided that their use is not against the interest of justice; that is, using the expanded powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[20] The tests for summary judgment can be expressed as follows:

1. Does the process (a) allow the judge to make the necessary findings of fact?

2. Does the process (b) allow the judge to apply the law to the facts?

3. Is the process is a proportionate, more expeditious and less expensive means to achieve a just result.

[21] If the judge is able to reach a fair and just determination on the merits on a motion for summary judgment, there will be no genuine issue requiring a trial.

Partial Summary Judgment

[22] Where partial summary judgment is considered, the judge must:

1. assess the advisability of the summary judgment process in the context of the litigation as a whole;

2. consider whether the factual findings necessary to determine the motion are so intertwined with the remaining issues. If the determinations on the motion risk inconsistent findings later and substantive injustice, summary judgment should not be granted. In what remains to be determined, it may be more fair, efficient and just for those findings to be made once in the context of the trial: See Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450; and

3. assess where the case is to be resolved on conflicting evidence, the dangers of inconsistent findings.

[23] Summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. See R. v. Butera, 2017 ONCA 783 and Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.).

Analysis

The School Solar Project

[24] FG2 entered into a contract with FSA in December 2015 to install solar panels on the rooftops of 25 schools in the Greater Essex County District School Board. FG2 was permitted to engage subcontractor for parts of the installation.

[25] Mr. Poss operates as sole proprietorship as Forest City Access and supplied labour and services for hoarding, scaffolding, debris netting initially for one site and then ultimately at a various job sites for the school solar project. Mr. Poss was hired by Mr. Reeder whom he knew. Mr. Poss understood through Mr. Reeder that the work was for inter-related companies. Mr. Poss also had contact directly with Fred Giessler.

[26] Mr. Poss initially provided detailed estimates # 1070 and # 1071 dated respectively January 21 and 27, 2016 to Fred Giessler and FG2.

[27] Mr. Poss provided a series of invoices to Fred Giessler and FG2 in relation to the initial site and then many individual school sites. The initial invoice is dated March 12, 2016 and the remaining 15 invoices were dated April 14, 2016. The work was particularized for each school site along with generalized services over the multiple sites. These were in accordance with the initial estimates. The total of the invoices is $35,223.15.

[28] Mr. Poss admitted on his examination that only FG2 owes him money.

[29] Mr. Reeder was employed as the project manager for the defendants since February 2014. He billed for his services through 1732467 Ontario Inc. and then later through 2501723 Ontario Inc. during this project. He reported directly to Fred Giessler who provided him direction for both defendant companies.

[30] Mr. Reeder maintained that Mr. Poss completed the work and, if there were any breaches of agreements or if any work was incomplete, this was the failure of Fred Giessler and, in any event, he had authorized Mr. Poss to proceed in this regard.

[31] Mr. Giessler makes two complaints about Mr. Poss. The first is that he was not aware Mr. Poss provided assistance in laying out and installing the solar panels and, if Mr. Poss did this, there were numerous deficiencies with the solar panels. Fred Giessler submits that deficiencies during the installation was a factor of FG2 being terminated from the balance of the school solar project. Although Fred Giessler alleges Mr. Poss should be liable for damages for negligent work, there is no evidence to infer that anything Mr. Poss did was deficient or led to damages to the defendants.

[32] In the second, Mr. Giessler complained about stair towers installed by Mr Poss in and around March 23, 2016. Children were said to be accessing roofs and this was one reason why GF2 was pulled from the project. He claims Mr. Poss refused to correct deficiencies. However, as outlined in the series of emails subsequently produced by Mr. Reeder, this was a complaint made third hand to Mr. Giessler and was in fact addressed and confirmed in the series of emails. The disputes about towers really appears to be with a FSA project manager to which Mr. Poss responds in an email dated March 23, 2016 at 9:59 pm to that project manager and copied to others including Mr. Giessler that:

“The equipment is not rented to you. The equipment is rented to Fred Giessler Electrical Contractors Ltd. and we (Frankensolar America and Forest City Access) have no contract in place. Currently you’re someone off the street altering someone else’s safety equipment on the property not owned by you. As has previously been mentioned, no one is to modify any installations without the express written consent of myself….Legal recourse will be pursued upon any unauthorized dismantle, removal or modification of the aforementioned equipment without written consent by me.”

[33] The written record is substantial in this regard and provides the basis to find that Mr. Poss did attend to and addressed the deficiencies that were relatively minor. In any event, any deficiencies were not of the making of Mr. Poss and were otherwise addressed by him.

[34] Mr, Giessler also raised that Mr. Poss provided pressboard when the contract called for plywood. This change had, however, been authorized by Mr. Reeder. The invoices 1075, 1076, 1077, 1078, 1079, 1080, 1081, 1082 as attached to Mr. Poss.’s affidavit specifically address the upgrading of panel hoarding. I find that Mr. Poss acted in a manner consistent with Reeder’s authorization. Mr. Reeder also made this known expressly in his email response to William Gullett dated April 15, 2016 at 3:02 pm contained in the defendant’s motion record. Mr. Reeder states:

“Because of the number of quotes floating around out there, I believe there is some confusion as to what I authorized Ian to do. These are the work orders I signed so Ian could proceed. These 3 are our contracts with Ian. Ian is willing to do whatever is asked to maintain his contract with you. I am the one that said to Ian leave the chip board for now. If there is any fault in this, it is mine.”

[35] Mr. Giessler also takes exception that Mr. Poss entered into an agreement with FSA on or after April 21, 2016. This was after the removal of FG2 on April 19, 2016 from its duties with FSA in the installation. It makes no sense that FSA’s relationship with Mr. Giessler or his companies was harmed by Mr. Poss. In the context of the overall circumstances, the nature of the claims and in view of Mr. Poss’s continued services directly with FSA and his completion of the balance of the schools, I find there is no basis to the claims that could be maintained against Mr. Poss by any of the defendants for damages.

[36] I find there are no genuine issues that require a trial involving the claim by Mr. Poss and counterclaim by the defendants. FG2 taking issue about with materials for hoarding and the other related minor aspects are matters properly raised with and approved of by the defendant’s project manager, Mr. Reeder.

[37] As to any concern and danger of inconsistent verdicts, this is one of those cases where the record demonstrates that the resolution of the claims of a plaintiff will not yield other inconsistent results in the circumstances. The claims of Mr. Poss are separate and distinct from the claims and circumstances involving Mr. Oliver. The danger of inconsistent results do not exist in any way with Mr. Oliver.

[38] As to the claims advanced by the plaintiff corporations with which Mr. Reeder was involved, what Mr. Poss did or did not do is not the issue. The real issue is the work Mr. Reeder authorized as the project manager and what was completed, not completed or work not properly performed that is the matter in dispute with the Giessler defendant companies. The concern of inconsistent findings does not arise involving Mr. Poss in this case.

[39] I am also mindful of the most recent decision of the Ontario Court of Appeal in 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670. The case involved the rescission of a franchise agreement. The central role of the disputed factual issue was whether there was the showing of an earnings projection by the franchisor before a franchise agreement had been signed by the franchisees. The court directed that the judge ought to consider the central role of the disputed factual issue in the litigation and that the judge had to consider the state of the evidence before the court on the disputed factual issues. In that case, the court observed:

[39] …. There was no cross-examination of the appellants’ deponents, including Danny, whose evidence was key. The record that was available to the motion judge consisted of contradictory affidavit evidence on the central factual dispute. It also included inconsistent evidence by William. This was not a case where credibility could be determined by reference to documents the parties exchanged that was contemporaneous or otherwise.

[40] The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record: A.C. v. Joyce, 2017 ONCA 49, at para. 92. The Supreme Court observed at para. 57 of Hryniak v. Mauldin that “on a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly”.

[41] The motion judge ought to have determined whether, in these circumstances, it would have been appropriate, or indeed necessary, to hear oral evidence as he was entitled to require under r. 20.04(2.2). If credibility cannot be assessed on a written record that should be a sign that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55. Here, the motion judge ought to have considered whether oral evidence on the key disputed factual issue would have enabled him to determine the rescission claims on this motion: see for example Hryniak, at para. 51; Choquette v. Viczko, 2016 SKCA 52, 476 Sask. R. 273, at paras. 54-56.

[40] Here the role of the disputed factual issue is whether Mr. Poss fulfilled the terms of his contract over a number of these projects. I find Mr. Poss fulfilled the terms of his contract in accordance with the authorization of the defendants’ project manager, Mr. Reeder. Credibility is not the issue between Mr. Poss and the defendants. Mr. Poss was also examined. Further oral evidence is neither appropriate nor necessary in these circumstances. Furthermore, this determination fairly adjudicates and resolves the dispute between Mr. Poss and GF2 on the record before the court in a timely, affordable and proportionate manner in light of the overall litigation.

[41] There is no genuine issue for trial, summary judgment must issue in Mr. Poss’s favour against F. Giessler Electrical Contractors Inc.

The Field Solar Project

[42] The Filed Solar Project involved separate purchase orders from FSA to FG1 and involved the solar panel installation at three sites at Glencoe, Strathroy and Dresden. Reeder was hired by FG1 as the project manager and included his hiring of subcontractors.

[43] The Glencoe and Strathroy purchase orders were both dated December 23, 2014, a full year before the School Solar Project referred to above. In any event, both projects were largely undertaken within the same period in early 2016.

[44] Mr. Reeder knew Mr. Oliver for over 20 years. Mr. Oliver’s farm was near one of the work sites. Mr. Oliver’s occupation was as a farmer who grew and exported horse hay. Mr. Reeder required the use of a tractor at one point and prevailed on Mr. Oliver to assist. Mr. Reeder then hired Mr. Oliver to do other works in early 2016.

[45] Mr. Oliver took directions and instructions directly from Mr. Reeder. Mr. Oliver performed work on both the School Solar Project and the Field Solar Project as directed.

[46] Oliver worked and invoiced as directed by Mr. Reeder as follows:

School Solar Projects

• FE 2016-9 March 14, 2016 Truck & Trailer rental $1,751.50
• FG 2016-10 March 14, 2016 Steel and panel delivery $1,412.50
• FG 2016-11 March 21, 2016 Truck & Trailer rental $1,751.50
• FG 2016-12 March 21, 2016 Loading & panels to sites $3,011.45
• FE 2016-13 March 24, 2016 Truck & Trailer rental $1,751.50
• FE 2016-14 March 24, 2016 Loading, cleanup & secure $1,271.25
• FG 2016-15 April 4, 2016 Cleanup schools in Phase 1, Organize roofs. Debris. Check stair towers. Take pictures $2,9121.62
• FG 2016-16 April 20, 2016 Finish Install at Roseland, Windsor $ 706.25 School Solar Total $14,577.57

Field Solar Projects

• Fred Giessler April 17, 206 Clean up sites. Strathroy & Glencoe $1,874.67
• Giessler Ele April 21, 2016 Weld all frames & drill & Install all anchors–both sites $2,757.20 Field Solar Total $4,631.87

Total - All Invoices $19,209.44

[47] In March of 2016, FSA issued deficiency notices to Mr. Giessler involving the Glencoe and the Strathroy sites. Mr. Giessler disputes the items in the April 21, 2016 invoice as work not properly done by Mr. Oliver. Reports as to the deficiencies at the Glencoe and Strathroy sites along with photographs were provided in evidence. FSA also issued back charges against FG1 for each of these 2 sites. Even though some deficiencies are alleged, the responsibility for the deficiencies is the relevant issue as it involves Mr. Oliver.

[48] Mr. Reeder authorized and directed the work to be done by Mr. Oliver in this manner. The deficiencies raised by Mr. Giessler about Mr. Oliver involve primarily the work invoiced April 21, 2016.

[49] I find there is no genuine issue that requires a trial involving the claims by Mr. Oliver or the counterclaims of the defendants against Mr. Oliver. The work taken exception to by the defendants was work was performed as directed and approved of by Mr. Reeder, the defendant’s project manager. I find that Reeder had the authority on behalf of FG1 over the hiring and authorized and directed that the work to be performed by Mr. Oliver.

[50] Here, the role of the disputed factual issue is whether Mr. Oliver fulfilled the terms of what he was asked and directed to do. Mr. Oliver did so in accordance with the authorization and approval and direction of the defendant’s project manager, Mr. Reeder. There exists no other central factual dispute between Mr. Oliver and the defendants. Mr. Reeder was likewise examined in these proceedings. Any further oral evidence is not necessary in these circumstances.

[51] Furthermore, this determination fairly adjudicates and resolves the dispute between Mr. Oliver and the defendants. This determination will have no bearing upon claims between Mr. Reeder, the other plaintiff companies, Mr. Poss or the defendants. These is essentially a separate matter as it was with the case involving Mr. Poss.

[52] Any factual findings necessary to determine the motion between Mr. Poss of Mr. Oliver and the defendants are not intertwined with the other corporate plaintiff’s claims involving Mr. Reeder. There is no risk of inconsistent verdicts arising between the remaining plaintiffs and the defendants.

[53] Accordingly, summary judgment shall also issue in Mr. Oliver’s favour as follows: against FG1 in the amount of $4,631.87 plus interest and against FG2 in the amount of $14,577.57 plus interest.

Piercing the corporate veil

[54] The test whether to pierce the corporate veil is whether the company is incorporated for an illegal, fraudulent or improper purpose. A separate legal personality of a corporate entity will only be disregarded where it is completely dominated and controlled and is being used as a shield for fraudulent or improper conduct. Complete control requires more than ownership and complete domination implies that the other corporate entity does not function independently.

[55] In this case, I find neither FG1 nor FG2 are dominated by the other nor is there evidence of conduct akin to fraud by the defendants that would unjustly deprive the claimants-plaintiffs of their rights. Mr. Poss knew from the outset that the company involved was GF2. Mr. Oliver made references on invoices that included to FG1 and FG2 which corresponded to the respective projects each of those companies had contracts for. The remaining corporate plaintiffs were likewise aware of this.

[56] This court, on the evidence available, cannot find that either company does not function independent of the other or otherwise nor acted in a manner akin to fraud to unjustly deprive the plaintiffs. The court will not pierce the corporate veil of either defendant corporation in these circumstances.

The claims of 1732467 Ontario Inc. and 2501723 Ontario Inc.

[57] The claims and evidence by the plaintiff corporations and the Giessler companies are, by contrast, certainly substantially in conflict.

[58] Mr. Reeder was the project manager. Mr. Giessler was also substantially involved in the overall operations of the projects. Mr. Reeder through his respective companies issued 7 invoices to the defendants dated between April 9, 2016 and April 23, 2016 for a total claim of $26,873.55. These invoices are itemized as to time and services and were accompanied by attached detailed sheets.

[59] There are genuine issues between these parties that require a trial and the hearing of evidence.

[60] Mr. Reeder maintains that all work that was done by all of the plaintiffs was completed under the direction of him and the defendants and that any incomplete work was the result of the failure of Mr. Giessler to advise the plaintiffs of the work still required to be done. As to any deficiencies, Mr. Reeder states the work was done under the specific guidance of the defendants. Mr. Giessler made decisions for work to be performed and any work that was not to be performed.

[61] Mr. Giessler states that Mr. Reeder and/or the plaintiffs did not perform the work in a good and workmanlike manner in accordance with accepted industry standards. He relies on communications and reports prepared by Peter Mueller of FSA. He relies on two reports dated May 2, 2016 entitled Glencoe Trackers and Strathroy Trackers with attached photos that comment on various deficiencies including inverter and frame work connections by welding and bolts, untighten bolts, overspray onto cables, the condition of a C-can, damage fencing, incomplete land grading, transformer casing conditions and damage, amongst other things.

[62] As to the School Solar Projects, Mr Giessler relies on reports prepared by Steenhoof Building Services Group involving 4 schools with 2 reports in May and 2 reports in July 2016 which identifies deficiencies at these sites. He also produced Corrective Action Reports involving 5 school by Meehan’s Energy that outline code violations and rework. None of these reports or other evidence attributes these deficiencies to Mr. Poss.

[63] Mr. Giessler produced an email exchange on April 12, 2016 that involved Jeff Reeder, him and others as to 3/4 inch plywood in relation to hoarding. Mr. Reeder clearly admits “I am the one that said to Ian leave the chip board for now. It there is fault in this, it is mine.” This supports the earlier position outlined involving the claim by Poss. No counterclaim can be maintained against Mr. Poss by the defendants in these circumstances. The same can be said in relation to the counterclaim by the defendants against Mr. Oliver.

[64] There is suspicion that the safety issues in relation to the School Solar Project, the deficient installation of solar panels and the claims including the counterclaim of the defendants and set-off in the Third Party Claim against Mr. Reeder, may be exaggerated or conflated by Mr. Giessler. There is certainly substantial animus on part of Mr. Giessler toward Mr. Reeder based on the evidence before this court. This, however, cannot be determined by assessment of the record before the court. Further oral evidence is required.

[65] Mr. Reeder was called to testify on August 24, 2016 before the Ontario Labour Relations Board particularly involving the same corporate defendants as here. Mr. Reeder’s testimony also involved significant employee issues at the same projects and during the same time frame as this case. Up until that time, it appears from the email exchanges between Mr. Reeder and Mr. Giessler than Mr. Giessler was contesting the deficiencies in relation to negotiations with FSA and not ascribing responsibility to Mr. Reeder nor the other plaintiffs.

[66] The Ontario Labour Board proceeding was brought by the Labourer’s Union of North America, Ontario Provincial District Council and on behalf of its affiliated union, 625 against the corporate defendant’s for unfair labour practices throughout January to March 2016 when a mass firing of employees of Contractor happened as directed by Mr. Giessler. This occurred while the Council had been in the course of organizing these employees. This hearing led to a finding that the corporate defendants had engaged in an unfair labour practice, interfered with the organizing drive, engaged in intimidation and coercion and utilized subcontractors and temporary employees instead of terminated employees. Remedial certification was granted by the Board in favour to the union and that the corporate defendants were declare as one employer. The Board’s decision was rendered on October 6, 2016.

[67] The email exchanges between Mr. Reeder and Mr. Giessler and produced by Mr. Reeder in particular, support the ongoing substantial employee and labour difficulties, tense atmosphere and personnel problems that occurred over the duration of these projects. These also demonstrate that Mr. Giessler did, well through the spring and beyond into August 2016, completely supported Mr. Reeder’s efforts and conduct throughout the projects. Mr. Giessler also provides Mr. Reeder direction and encouragement throughout this period without any complaint.

[68] Mr. Giessler’s position involving Mr. Reeder has, since later in August 2016, dramatically and profoundly changed.

[69] Against the backdrop of this history and context, credibility obviously becomes a most significant issue between Mr. Giessler and Mr. Reeder. The claims, counterclaims and third party claim must be assessed and credibility will be an important issue. Any proper assessment in this context must go beyond what is in the documents presented on this motion. Oral evidence is required to be heard to determine the central factual dispute as to whether Mr. Reeder did fulfill his duties as project manager or whether he was directed or frustrated by the actions of the defendants or other persons.

[70] A trial is necessary on these issues between these parties.

Summary and Conclusions

[71] In summary then, there shall be

a. summary judgment granted in favour of the Plaintiff, Mr. Poss, against the defendant, F. Giessler Electrical Contractors Inc. in the amount of $ 35,223.15 plus interest and costs;

b. summary judgment granted in favour of the Plaintiff, Mr. Oliver, against the defendant, F. Giessler Electrical Contractors in the amount of $14,577.57 plus interest and against F. Giessler Electrical Ltd in the amount of $4,631.87, plus interest and costs;

c. an order dismissing the counterclaims of the defendants against the plaintiffs Mr. Poss and Mr. Oliver;

d. no summary judgment granted in favour of the plaintiff corporations against any of the defendants; and

e. an order that the balance of the claims in these actions shall proceed to trial and placed on the next available Assignment Court list. A judicial pretrial shall take place on a date to be arranged between counsel for the parties and the trial co-ordinator.

[72] As to costs of the plaintiff Mr. Poss, he shall, if requesting costs from the defendants, make submissions in writing not to exceed 2 pages in addition to any bill of costs plus referenced cases within 15 days of release of this decision. The defendants shall have 10 days to reply in writing not to exceed 2 pages plus referenced cases.

[73] As to costs of the plaintiff, Mr. Oliver, he shall, if requesting costs from the defendants, make submissions in writing not to exceed 2 pages in addition to any bill of costs plus referenced cases within 15 days of release of this decision. The defendants shall have 10 days to reply in writing not to exceed 2 pages plus referenced cases.

[74] As to the plaintiffs 1732467 Ontario Inc. and 2501723 Ontario Inc., and the defendants, costs shall be reserved to the trial judge hearing the trial.

“Justice M.D. McArthur” Justice M. D. McArthur

Released: August 14, 2018