Court File and Parties

COURT FILE NO.: CV-17-568512 DATE: 20190925 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: H.R. Doornekamp Construction Limited, Plaintiff AND: Attorney General of Canada, Defendant

BEFORE: Pollak J.

COUNSEL: John Margie & Jay Nathwani, for the Plaintiff Jacqueline Dais-Visca & Mary Shenouda, for the Defendant

HEARD: May 21, 2019

Endorsement

INTRODUCTION

[1] The plaintiff H.R. Doornekamp Construction Ltd. ("Doornekamp") moves for a partial summary judgment finding that there is liability on the part of the defendant. The Plaintiff leaves the determination of the quantum of damages for trial.

[2] Doorenkamp contracted with Department of Public Works and Government Services Canada ("PWGSC") (Canada) to demolish and replace the concrete face of a canal lock (the “work”). The work was to be paid for on a unit-price basis, based on units of concrete actually demolished and supplied.

[3] Doorenkamp claims payment for the units of concrete it demolished and supplied, in accordance with the mandatory payment provisions of the standard-form government contract between the parties. The claim of Doornekamp is not a claim for unapproved change or delay, but rather for payment in accordance with the mandatory contract terms.

[4] Doorenkamp’s action is for $1,500,000 plus HST for breach of contract, which includes a claim for “additional costs to remove the concrete and place the additional cubic metres of Class 1 concrete on account … in unusally cold weather experienced in November 2013-February 2014”.

[5] Doorenkamp submits that this action is appropriate for summary judgment as there are no material facts in dispute, or issues of credibility to resolve as its evidence of Mr. Ben Doornekamp, is uncontradicted. The Attorney General of Canada’s (“Canada”) only affiant is a legal assistant in the office of the Department of Justice in Toronto, who has no knowledge of the Work performed or experience in construction. Her exhibits are not produced for the truth of their contents. She does not dispute the evidence of Mr. Doorenkamp.

[6] Doorenkamp emphasizes that on this motion, there is no evidence from past or present employees of PWGSC.

[7] It is submitted that this court should assume that no better evidence will be led by Canada at trial, and that the court ought to draw an adverse inference from the lack of any evidence from anyone involved with the project.

[8] It is submitted that Doornekamp is entitled to partial summary judgment declaring the “liability” of Canada.

[9] Canada’s motion for summary judgment is for a dismissal of Doorenkamp’s claim on the ground that it was extinguished by “operation of the contract”. Canada submits that on these two competing motions, the court must first interpret the contract and determine if Doorenkamp’s claim was extinguished by the operation of the contract.

[10] Canada’s position is that contractually, the parties agreed that all disputes arising under or in relation to the Contract are determined in accordance with the notice, claims substantiation and contract dispute resolution provisions of the contract and not in an action for damages before the court. It is submitted that the GC8 Dispute Resolution provisions in the Contract apply to all disagreements between the parties arising under the Contract. Doornekamp however, disagrees and argues that disagreements relating to an adjustment in unit rates are special and are to be exclusively resolved under GC6.4.3. and that therefore a refusal of a request for an adjustment of compensation payable for unit rates by Canada is to be decided by way of an action and is not subject to the provision of GC8 Dispute Resolution.

[11] The Contract consists of a signature page, the completed Bid and Acceptance form, Drawings and Specifications, and is subject to the General conditions in the Standard Form Contract used by PWGSC.

[12] The Contract provides for two categories of payment, the “Unit Price Table” and a $700,000.00 (excluding taxes) “Lump Sum” payment covering all costs incurred not otherwise covered under the Unit Price Table including, but not limited to all labour, material, administration and supervisory costs.

[13] Pursuant to GC2.2, if, at any time before a Certificate of Completion is issued; any question arises between the parties about whether anything has been done as required by the Contract or about what the contractor is required by the contract to do, the question shall be decided, subject to the provisions of GC8 “Dispute resolution” by Canada.

[14] GC 8.3.1 provides, in part:

Any difference between the parties to the Contract of any nature arising out of or in connection with the Contract which could result in a claim by the Contractor against Canada, and which is not settled by consultation and co-operation as envisaged in GC8.2, "Consultation and Co-operation", shall be resolved in the first instance by Canada, whose written decision or direction shall be final and binding subject only to the provisions of GC8. …

[15] Doorenkamp argues that the disagreement relating to an adjustment in unit rates is special and must be resolved under GC6.4.3. Refusal of a request for an adjustment of compensation payable for unit rates is to be decided by way of a court action, not under GC8 “Dispute Resolution”.

[16] Doorenkamp relies on GC6.4.3 of the contract “Price Determination” – Variations in Tendered Quantities” which provides as follows:

1. “Except as provided in paragraphs 2), 3), 4) and 5) of GC6.4.3, if it appears that the final quantity of labour, Plant and Material under a price per unit item shall exceed or be less than the estimated tendered quantity, the Contractor shall perform the Work or supply the plant and Material required to complete the item and payment shall be made for the actual Work performed or Plant and Material supplied at the price per unit set out in the Contract.
2. If the final quantity of the price per unit item exceeds the estimated tendered quantity by more than 15 percent, either party to the Contract may make a written request to the other party to negotiate an amended price per unit for that portion of the item which exceeds 115 percent of the estimated tendered quantity, and to facilitate approval of any amended price per unit, the Contractor shall, on request, provide Canada with a. Detailed records of the actual cost to the Contractor or performing or supplying the tendered quantity for the price per unit item up to the time the negotiation was requested; b. The estimated unit cost of labour, Plant and Material required for the portion of the item that is in excess of 115 percent of the tendered quantity. c. If agreement is not reached as contemplated in paragraph 2) of GC6.4.3, the price per unit shall be determined in accordance with GC6.4.2.”

[17] Doorenkamp argues that this provision constitutes a “separate code”, which is not subject to GC8 of the contract.

[18] The parties disagree on the meaning of GC6.4.3 and whether a disagreement about compensation for demolition and supply of concrete in excess of tendered amounts is a question of interpretation of the contract within the meaning of GC2.2 “Interpretation of Contract”. If it is, Canada argues first, that any such disagreements are to be decided by Canada in the first instance and failing agreement, decided in accordance with GC8 Dispute Resolution. It is submitted that as a consequence of Doornekamp’s failure to deliver the notice required by the GC8 Dispute Resolution provision, that Doorenkamp’s claim for additional compensation has been extinguished by operation of the Contract.

[19] Canada further argues that to prove an entitlement under GC6.4.3 to negotiate an amended price per unit for an item which exceeds 115% of the tendered quantity, Doornekamp must prove that the alleged excess supply was in relation to approved “Work” and not, for wasted concrete or concrete supplied to correct Doornekamp’s own negligence including overbreak of concrete demolition beyond the design limits of the Work.

[20] As an alternate position it is submitted by Canada that at a minimum to engage GC6.4.3 on this motion, the parties must be in agreement that there has been a supply in excess of the tendered quantities; They are not. On these motions, it is submitted that as the parties disagree on whether Doornekamp has supplied in excess of tendered quantities with no proper determination on this issue of the interpretation of the contract, and further where there is a dispute on whether this disagreement is a dispute within the meaning of GC2.2 and GC8. Doorenkamp’s lack of such evidence regarding the applicability of GC6.4.3 justifies a dismissal of Doorenkamp’s claim or alternatively of Doorenkamp’s motion as this is an issue requiring a trial.

[21] Doorenkamp summarized its argument with respect to the interpretation of the contract as follows:

“MR. NATHWANI: …we say that GC6.4.3 provides a complete code for dealing with overages and unit quantities, and there’s an obligation to negotiate an amendment to the unit price when extra quantities are supplied and to pay extra quantities supplied up to 15% at the unit rate agreed to in the contract and his correspondence from Public works has not been responsive to the request to negotiate, has not been responsive to the public work’s obligations under GC6.5.3 and that the request to negotiation, which is the proper step, was reiterated when my firm got on the record and that – you see that in the next – Exhibit GG, but it’s not for --- we say it’s not for Public Works under 6.4.3 to say “Well this claim is unsubstantiated,’ or “You’re not entitled to this.” It’s a mandatory provision requiring payment and while G – while Public Works purports to say the claim is unsubstantiated, they don’t provide any rationale for that. They don’t say why 6.4.3 doesn’t apply, and it’s not their proper role under 6.4.3 to make that determination. They’ve got to make the payment and they’ve got to enter into a process of negotiation

MS. DAIS-VISCA: Given your legal position, that this is a complete isolated code for compensation on a unit price basis, there was, in your view, no need to – or more accurately, no requirement to provide any notices under GC8.4, no notice of dispute?

MR. NATHWANI: That’s correct. Subject to my earlier comments that insofar as – you know, if we’re wrong about that, we say that the parties were engaged in a dispute resolution process that there’d been, as I say, a waiver of the precise dispute resolution process set out in the contract.”

[22] Canada argues, in the alternative, that even if the court accepts Doornekamp’s argument that disputes over whether claims for additional compensation for supply of concrete and demolition of concrete in excess of tendered amounts are to be resolved by way of an action in court and not under the contract dispute resolution procedure, that partial summary judgment should not be granted because:

a. Doornekamp admits that Canada rejected its claims as unsubstantiated; b. Doornekamp failed to put its best foot forward and failed to adduce admissible evidence on this motion to discharge its onus of proving, among other things, the quantity of concrete allegedly supplied in excess of the estimated tender amounts and that the concrete removal and supply were in respect of approved “Work”, which at a minimum, leads to a finding of a genuine issue requiring a trial; and c. Doorenkamp cannot avoid its evidentiary and ultimate burden by asking the court to draw an adverse inference against Canada. Doorenkamp has not satisfied its burden of proving that GC6.4.3 is applicable.

[23] To summarize, Canada’s first position on these motions is that there is no genuine issue requiring trial that Doornekamp’s claim was extinguished by operation of the Contract as the issue is one of contract interpretation. In the alternative, Doorenkamp’s partial summary judgment motion and its action should be dismissed by reason of Doorenkamp’s failure to prove its claim and in the further alternative that the failure of Doorenkamp to lead evidence leads to a finding of a genuine issue requiring a trial.

Canada’s motion for summary judgment

[24] Canada relies on the fact that Doornekamp did not provide any Notice of Dispute in the form prescribed by GC8.3.2 which it argues extinguished the Plaintiff’s Claim.

[25] It is submits that nothing in GC8 relives Doornekamp from its obligation to provide any other notice required within the time specified in the Contract including any notice required under GC6.2 (GC8.3.5).

[26] Doornekamp however, relies on its characterization of the “fundamental commercial bargain” between the parties and the express, mandatory payment provisions of the contract.

[27] It submits that there is no disagreement over contractual interpretation. It submits that the contract can not be interpreted to permit Canada to make a decision to breach its contract by denying a claim for payment pursuant to GC6.4.3 which is clearly due and also rely on technical non-compliance with a notice-to-negotiate provision to extinguish the claim. The difficulty with this argument is Doorenkamp’s assumption that such payment is clearly due. There is no direct evidence on the record to show that the requirements for payment pursuant to this provision have been met. To the contrary, Canada does not admit that the conditions have been met.

[28] GC 6.4.3.1 requires that:

“where the units supplied exceed the estimated tender quantities, "the Contractor shall perform the Work or supply the Plant and Material required to complete the item and payment shall be made for the actual Work performed or Plant and Material supplied…."

[29] Doorenkamp’s position is that, this provision is, in substance, an order or direction for work by the owner, with a promise to pay by the owner. It is therefore both commercially reasonable and in keeping with the scheme of the contract to treat a claim for payment under GC 6.4.3 as different.

[30] Doorenkamp’s argues that on this motion, there is no evidence from any PWGSC project personnel to contradict the evidence of Mr. Doornekamp that the plaintiff properly supplied the quantities claimed for. Doorenkamp relies on the uncontradicted evidence of Mr. Doornekamp that an owner seeking unit prices takes the benefit of a lower unit price because, unlike in a fixed-price contract, the contractor need not account for the risk of overages, knowing that such overages will be paid pursuant to the terms of the unit price contracted. It is argued that it would be commercially unreasonable and inequitable to permit Canada to take the benefit of lower unit prices and deny payment in accordance with the mandatory payment language of the contract. GC 6.4.3 obligates a contractor to do the work, even if it means supplying more units than anticipated, with a corresponding obligation to pay for the actual supplied units.

[31] Doornekamp could not refuse to supply the units; and Canada can not refuse to pay for them. However, the burden of proof on this issue is on Doorenkamp. I find that it has not satisfied that burden of proving what work was performed and specifically that the preconditions of GC6.4.3 were satisfied

[32] Doornekamp further submits that even if a notice of dispute requesting formal negotiation under GC 8.4 might have been required in order for it to contest Canada’s refusal to pay in accordance with GC 6.4.3, the contractual requirement for a notice of dispute was not yet reached.

[33] GC 8.2.2 provides:

The parties agree to consult and co-operate with each other in the furtherance of the Work and the resolution of problems or differences that may arise.

[34] Doorenkamp argues that the process of “consultation and/or operation” was incomplete at the time that Canada alleges it made a decision rejecting Doornekamp’s claim. In particular, Canada had advised on February 25, 2016 that it had "started the PWGSC claims process" and would provide updates, and, further, on March 4, 2016, that it would provide Doornekamp with "anticipated milestone dates to get through the next steps”. Relying on Canada’s correspondence, Doorenkamp submits that there was a process with a number of steps and assurances given to Mr. Doornekamp that he will be advised of those steps and their dates. The commercially reasonable way to understand the advice from Canada, in the context of the dispute then between the parties and given the contractual framework, is that Canada was proposing a process of consultation and cooperation to attempt to resolve Doornekamp Construction's claim. Pursuant to GC 8.3.1, it was not until such a process failed to result in a settlement that Canada was entitled to make a binding decision on the issue. That process not having been completed, the contractual precondition for the delivery of a binding decision was not satisfied, and Canada’s purported decisions were therefore nullities. Canada must abide by the terms of its own contract if it seeks to enforce the most draconian provisions of that contract to deny payment. I agree that such evidence does establish a genuine issue requiring a trial.

[35] Doornekamp argues that in addition to failing to satisfy the preconditions for delivery of a decision, Canada’s actions also raise a genuine issue for trial as to whether it is disentitled to strict compliance with the notice provisions on the basis of a pattern of conduct which deviated from the contractual process.

[36] Canada responds to this argument by relying on GC1.14:1 (2008-05-12), the Contract may be amended only as provided for in the Contract:

The Contract constitutes the entire and sole agreement between the parties with respect to the subject matter of the Contract and supersedes all previous negotiations, communications and other agreements, whether written or oral, relating to it, unless they are incorporated by reference in the Contract. There are no terms, covenants, representations, statement or conditions binding on the parties other than those contained in the Contract.

The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the right thereafter to enforce such provision. Nor shall the waiver by either party of any breach of any covenant, term or condition hereof be taken to be held to be a waiver of any further breach of the same covenant, term or condition.

[37] Doornekamp argues that it is well-established in law that a pattern of conduct can disentitle a party to reliance on the strict provisions of a contract. Canada accepted the submission by Doornekamp of a claim document in February, 2016 nine months after Canada purported to make a decision denying the claim on May 29, 2015 when it advised that Doornekamp Construction should "move forward with Canada’s standard claims resolution process". Rather than take position in February of 2016 that the claim was barred by GC 8.3.2, Canada made written statements to Doornekamp that the parties had "started the Canada claims process" and later wrote that updates as to the timing of "anticipated milestone dates to get through the recommended steps" would be forthcoming from Canada. Such, Doorenkamp submits is not consistent with the strict dispute resolution provisions of the contract, which would have required delivery a notice of dispute requesting formal negotiation under GC 8.4 in June of 2015, followed by an escalating process of negotiation, mediation and arbitration or litigation. Canada’s conduct in February and March, 2016 in advising that a claims process was engaged, before any notice of dispute requesting formal negotiation under GC 8.4 had been delivered, was clearly at variance from the original terms of the contract.

[38] Mr. Doornekamp's evidence is that he understood from PWGSC's communications that the claims process had been properly engaged, that Doornekamp had taken all necessary steps under the contract to assert its request for payment, that a negotiation of a revised unit price under GC 6.4.3 would follow, and that it was not necessary to engage GC 8.

[39] It is submitted that in the circumstances, Mr. Doornekamp's understanding was entirely reasonable, given Canada’s prior representations that the parties were in a "claims process" with timing and recommended steps to follow to be communicated by Canada.

[40] Doornekamp argues that where a contract is varied by the conduct of the parties, it is not open to one party to unilaterally revert to and rely on the strict wording of the original contract. It was therefore not open to Canada to insist on strict compliance with the original dispute resolution provisions of the contract without a further agreement by Doornekamp to revert to the prior terms of the contract.

[41] Even if it had been open to Canada to unilaterally revert to the former terms of the contract, Canada's attempt to rely on the prior terms of the contract is contrary to the contractual and common law obligations of Canada. The contract requires, at GC 8.2.1, that "The parties agree to maintain open and honest communication throughout the performance of the Contract." These requirements are consistent with the common law duty of honest performance in contractual relationships. The contractual obligations of open and honest communication and the common law duty of honest performance required, at the very least, that Canada provide clear and unequivocal notice to Doornekamp that Canada was now reverting back to the strict terms of the contract. It did not do so.

[42] Doorenkamp submits that conduct of Canada raises a triable issue as to whether the parties varied the terms of the contract by their conduct, and whether Canada’s actions were contrary to contractual and common law duties of honest communication. I agree.

[43] GC1.14:1 may be sufficient to dispose of Doorenkamps argument. However, I have already found that there are significant issues requiring a trial.

[44] In Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87, the Supreme Court of Canada provided a roadmap to follow on a summary judgment motion. At para. 66, the court states:

"On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her 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).

If there appears to be a genuine issue requiring a trial, she 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). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness…”

[45] The Supreme Court of Canada in Hryniak attempted to create a procedure designed to be expeditious and affordable. However, the process must also ensure that the dispute is resolved fairly and justly.

[46] The Ontario Court of Appeal stated in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at paras. 35 and 37, that the advisability of a staged summary judgment process must be assessed in the context of the litigation as a whole. The Court noted that in a staged summary judgment process there was a risk that a trial judge would develop a fuller appreciation of the relationships and the transactional context than the motion judge. This difference in appreciation could lead to a trial decision that would be implicitly inconsistent with the motion judge's finding, even though the parties would be bound by the motion judge’s finding. This difference in appreciation could lead to inconsistent findings and substantive injustice. At paras. 44-45 the court stated:

“…Evidence by affidavit, prepared by a party's legal counsel, which may include voluminous exhibits, can obscure the affiant's authentic voice. This makes the motion judge's task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not "serve the goals of timeliness, affordability and proportionality" (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.”

[47] The Ontario Court of Appeal considered the appropriateness of motions for summary judgment that will determine some of the issues, but will not dispose of the action as a whole. The Ontario Court of Appeal reviewed the problems associated with partial summary judgment motions.

[48] In particular, the partial summary judgment motions tend to defeat the stated objectives of proportionality, timeliness, and affordability set out in the Hryniak case.

[49] The Court of Appeal held in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34, that a partial summary judgment motion should be considered a “rare procedure” that is reserved for issues that can be easily bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner.

[50] The Court, at paras. 26-34, reasoned that this approach is entirely consistent with the Supreme Court’s comments in Hryniak:

“[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. V. Daigle & Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:

[P]atrial summary judgment ought only to be granted in the celarest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3D) 561. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives in Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the actions and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may be very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[34] When bringing a motion for partial summary judgment, the motion be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.” [emphasis added]

[51] On the motion for summary judgment brought by Canada, I must consider if I can reach a fair and just determination on the merits. I must be able to make the necessary findings of fact, apply the law to the facts, and the motion must be a proportionate, more expeditious and less expensive means to obtain a just result, than a trial. I must determine whether on the basis of the evidentiary record alone, are there genuine issues that require a trial.

[52] Doornekamp submits that summary judgment in favour of Canada is not possible as there are genuine issues requiring a trial. Canada, however, argues that there are no genuine issues in dispute which require trial.

[53] I will now apply the Supreme Court of Canada’s roadmap from Hryniak. I must first determine whether on the basis of the evidentiary record alone, there are genuine issues that require a trial. I must ask if the evidentiary record in front of me provides me with the evidence I need to “fairly and justly adjudicate the dispute”.

[54] On the basis of the evidence I have referred to above, I find that there are two genuine issues requiring a trial:

1. Did Doorenkamp properly invoke and rely on GC6.4.3; and
2. This second genuine issue is whether Canada’s conduct referenced to above, affected the rights of Doorenkamp, with respect to its Claim.

[55] Second, I must determine if the need for a trial can be avoided by the use of my fact-finding powers. I must ask if it would be in the interest of justice to do so. Will the use of these powers that I have led to a “fair and just result” that will serve the goals of timeliness, affordability and proportionality in light of the litigation as whole?

[56] In my view, the answer is no. The triable issues in dispute are significant and can not be easily segregated from the others in a trial. To resolve this case justly and fairly, I would need to use the additional fact-finding powers to conduct a large portion of this trial. That would not be in the interests of justice.

[57] I agree that in order to resolve these two competing summary judgment motions, the issue raised by Canada with respect to the interpretation of the contract must be dealt with first. I can not resolve the issue because of the genuine issues I have found that require a trial.

[58] As well, I find that it would not be appropriate to consider Doornekamp’s motion for partial summary judgment, in light of my findings with respect to the genuine issues for trial and because the facts of this case are so inter-related and intertwined. Most importantly, I find that the concerns raised by our Court of Appeal, referenced to above, would be applicable and further find that Doorenkamp’s indirect evidence is not sufficient for it to discharge its burden of proving that the requirements of GC6.4.3.1. have been met.

[59] To conclude, as the evidentiary records on these motions, in my view, raise genuine issues that require a trial, Canada’s motion for summary judgment is dismissed. Doorenkamp’s motion for partial summary judgment is also dismissed.

[60] There is one further practical issue. The Supreme Court of Canada in Hryniak also held that at para. 78, that:

Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.

[61] In my view, this is an appropriate case for me to follow the Supreme Court’s direction. I must, however, qualify this to be subject to the practical reality of our court’s ability to schedule trials in a timely and expeditious manner. I will not be seized of this trial if the effect of my unavailability would be to delay the hearing of the trial between the parties. If it is possible to do so without adverse delay or consequences to the parties, I seize myself of the trial of this matter as directed by our Supreme Court of Canada.

Costs

[62] As neither party was successful on these motions, I find that each party should bear their own costs of these motions.

Pollak J. Date: September 25, 2019