Court File and Parties
Newmarket Court File No.: CV-13-114784-00 Date: 2019-03-05 Ontario Superior Court of Justice
Between: N.K.P. Painting Inc., Plaintiff Defendant to the Counterclaim – and – Lamb Dundas Corp. and 319 Carlaw Inc., Defendants Plaintiffs by Counterclaim
Counsel: F. Scott Turton, for the Plaintiff Defendant to the Counterclaim Robert D. Malen, for the Defendants Plaintiffs by Counterclaim
Heard: June 1, 2017
Decision on Partial Summary Judgment Motion
Sosna J.
Introduction
[1] On February 1, 2011, the plaintiff, N.K.P. Painting (“NKP”), contracted with the defendants, 319 Carlaw Inc. (“319 Carlaw”) and Lamb Dundas Corp. (“Lamb Dundas”), to supply and install painting and wall coverings for two high-rise residential condominium projects in Toronto.
[2] During the project, “extras” were performed by NKP, most on a time and material basis. Invoices forwarded by NKP to the defendants for the “extras” were disputed. Meetings between NKP and the defendants to resolve the outstanding invoices were held.
[3] The defendants contend that during the meetings, agreements were reached with NKP regarding payment of 37 individual invoices for “extras” tendered by NKP. NKP denies that agreements were reached. The meetings having failed, NKP issued a Statement of Claim seeking payment from the defendants for all outstanding invoices.
[4] At pre-trial, in order to assist in the possible overall resolution of the case, Edwards J. ordered that a partial summary judgment motion be heard on the disputed invoices relating to the 37 “extras”. Both parties consented to the hearing of the motion.
[5] The motion was heard by this court in June 2017. The motion included viva voce evidence from the individuals involved in both projects. Written submissions were subsequently completed and filed with the court in 2018.
Factual and Procedural Background
[6] Cormac Foley (“Foley”) was the project manager for both the “Carlaw Project” and the “Lamb Dundas Project”. Nicholas Pavlou (“Pavlou”) is the owner of NKP.
[7] The original contract price for the Lamb Dundas Project with additional paid change orders was $180,109.00. The contract price for the Carlaw Project with paid change orders was $202,243.92, excluding HST but including a back charge of $8,176.08.
[8] NKP has been paid in full on the original contract prices.
[9] During the project, the “extras” performed by NKP were calculated on a time and material basis. NKP invoiced the Carlaw Project $184,216.89 for the “extras” performed, and $139,882.61 on the Dundas Project for the “extras” performed.
[10] Meetings for payment of the “extras” commencing in November 2012 through May 2013 were primarily conducted by Foley and Pavlou. Spreadsheets prepared by the defendants identified the work completed in conjunction with the individual invoices issued by NKP.
[11] The defendants contend that Pavlou agreed to final payment on 12 invoices for the Lamb Dundas Project, and on 25 invoices for the Carlaw Project. When agreements were reached on an individual invoice, Foley wrote “Agreed” on that item as set out in the spreadsheet. Pavlou was provided copies of the spreadsheets that purportedly confirmed the invoices on which agreements were reached.
[12] Save and except for a maximum five items marked as “Agreed” by Foley, Pavlou disputes that the other items marked “Agreed” in the spreadsheets reflect or confirm any agreement had been reached with him and Foley.
The Moving Party's / Defendants' Position
[13] The defendants submit the present motion deals with the discrete issue of whether the parties had agreed on the price charged by the plaintiff for the 37 selected invoices. If this Court grants partial summary judgment, significant time and expense is saved in the main action which will deal with the remaining unresolved invoices.
[14] As such, this motion meets the criteria in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34, which holds, in part, that “a motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”
[15] The defendants argue that each individual notation marked “Agreed” by Foley on the spreadsheet in question represents final negotiated agreement with Pavlou for payment for that item.
[16] The defendants submit the agreements reached in each invoice were supported by consideration, as both parties compromised in reaching agreements - on some items Foley accepted Pavlou’s numbers whereas on other items there were agreed reductions.
[17] The defendants move that this Court order partial summary judgment for final payment of the 37 invoices on which agreement was reached.
The Responding Party's / Plaintiff's Position
[18] The plaintiff submits the defendants’ motion for partial summary judgment be dismissed. The plaintiff argues that Edwards J.’s order that a partial summary judgment motion be heard was in error in light of the subsequent decision of the Court of Appeal in Butera. That decision, at para. 38, holds that in the absence of considering “whether partial summary judgment was appropriate in the context of the litigation as a whole”, ordering the hearing of a partial summary judgment motion is an inextricable error. The plaintiff submits that Edwards J. failed to make such assessment.
[19] In the alternative, should the court find that a motion for partial summary judgment is appropriate, the plaintiff submits the events rise to nothing higher than ultimately unsuccessful negotiations in which final settlement was not reached. In these circumstances, the matter should proceed to a trial on all the disputed invoices for the court to have the benefit of the negotiations as a whole.
Issues to be Determined
In failing “to consider whether partial summary judgment was appropriate in the context of the entire litigation as a whole”, did Edwards J. err in ordering the hearing of this motion?
If not, was an agreement reached by the parties on the price charged by the plaintiff for the 37 items marked as “Agreed”, for partial summary judgment to be granted?
Analysis and Findings
Was an error made by Edwards J. in ordering the hearing of the present partial summary judgment motion?
Despite the ratio in Butera, released after Edwards J.’s order, counsel had agreed the partial summary judgment motion, if successful, would shorten the trial by not having to call evidence on the 37 “extras” in dispute. The joint consent of the parties remains binding. No error was made by Edwards J. in ordering the hearing of this partial summary judgment motion.
Was an agreement reached by the parties on the price charged by the plaintiff for the 37 items marked as “Agreed”, for partial summary judgment to be granted?
As previously noted, Butera states that “a motion for partial summary judgment should be considered to be a rare procedure” and, that this “approach is consistent with the objectives described by the Supreme Court in Hryniak”: at para. 34. In Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 22, the court held that “[s]ummary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial.”
[20] I have had the benefit of the viva voce evidence provided by Foley and Pavlou in this motion. Both maintain polar opposite positions on whether any agreements were reached in their meetings concerning the 37 invoices in question. The credibility of their evidence is central to their respective positions in the present motion and in the main action involving the other invoices which remain in dispute.
[21] As further held in Butera, at para. 34, a motion for partial summary judgment “is reserved for an issue or issues that may be readily bifurcated from those in the main action”. To bifurcate that issue of credibility in the present motion from the main action is inconsistent with the direction in Butera.
[22] I find only in the context of the litigation as a whole, inclusive of the 37 invoices in this motion, can Foley’s and Pavlou’s credibility be fully assessed for the court to make the findings necessary.
[23] For all the aforementioned reasons, the defendants’ motion for partial summary judgment is dismissed. Further, no finding made in this motion is binding on the trial court.
[24] Although the plaintiff was successful in opposing the defendants’ partial summary judgment motion and seeks costs, the motion was brought on consent of both parties. In these circumstances, costs are reserved to the trial judge.