COURT FILE NO.: CV-19-624562
DATE: August 9, 2019
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Epoxy Flooring & Painting Inc. v. Gillam Group Inc., City of Toronto and the Municipality of Metropolitan Toronto;
BEFORE: MASTER C. WIEBE
COUNSEL: Angela Assuras for Epoxy Flooring & Painting Inc. (“Epoxy”); Jana Smith for Gillam Group Inc. (“Gillam”);
Brennan Maynard for the City of Toronto (“Toronto”).
HEARD: August 8, 2019.
REASONS FOR DECISION
[1] Epoxy brought this motion on July 26, 2019 seeking an order requiring Gillam and Toronto to respond to two written requests for information pursuant to section 39 of the Construction Act R.S.O. 1990, c. C.30 (“CA”). CA section 39(6) expressly provides for such a motion and states that the court may award costs “as it considers appropriate in the circumstances.”
[2] The motion material indicated that Ms. Assuras had on June 29, 2019 sent two letters by fax requesting information under section 39, one to Paul Ainslie at Toronto and to one to Les Weidman of Gillam. There was no response to both letters. Ms. Assuras sent follow-up letters by fax to both individuals on July 17, 2019 enclosing the June 29, 2019 letters and threatening a motion if there was no response. There was no response to both letters. Ms. Assuras prepared and served her client’s motion record and served it by fax on both parties using the same fax numbers she had used for the letters. Both Toronto and Gillam admit receiving those faxed motion records. It is important to note that there is no action between Epoxy and Gillam and Toronto at this point.
[3] By the time this motion was argued, Toronto had delivered a written letter response (dated August 6, 2019) to the section 39 information request. The issue with Toronto was whether there should be order requiring that Toronto also provide “the state of accounts between the payor and Gillam, including the dates and amounts of all payments,” on or before August 14, 2019. In the end Mr. Maynard did not dispute this order, and I make it. The only other issue with Toronto was the costs of the motion, which I will address shortly.
[4] As to Gillam, the parties reached an agreement that Gillam provide its written response on or before August 14, 2019. The only remaining issue with Gillam was also the costs of the motion.
[5] As to the motion costs, Ms. Assuras filed a costs outline that showed the partial indemnity amount of $5,219.24 (HST inclusive). The document showed a total of 11.7 hours for preparing the motion record and the costs outline for a total of $3,861, plus counsel fee of $700 for the appearance, which at Ms. Assuras’ rate represents about 2.5 hours. Ms. Assuras pointed out that she did not include the time she spent on preparing and delivering the supplementary affidavit of Richard Ngu which ended up being the central evidence in the argument.
[6] Mr. Maynard and Ms. Smith both argued that there should be no costs as there was no evidence that the s.39 written notices were in fact delivered. They argued that the motion was, therefore, not necessary or proper. I do not accept these submissions. Ms. Assuras showed me through the fax confirmation forms in the supplementary affidavit that the written notices were indeed faxed to the right fax numbers for Toronto and Gillam. The defendants admitted that these were the right fax numbers. They also admitted that they received the eventual motion records which were faxed to those same fax numbers. It makes no sense that the two earlier letters from Ms. Assuras containing the written notices that were sent to the same fax numbers, did not get sent. Ms. Smith tried to make the argument that the fax confirmation forms for the faxes to Toronto did not show that the faxes got through. She referred me to a 0 that appeared under remote station in the fax confirmation form. I do not accept that submission either as the forms show that some form of document did indeed get through. The conclusion I draw from the evidence is that both Gillam and Toronto lost or ignored the s.39 written notices.
[7] Counsel for Gillam and Toronto also argued that the faxing of the written notice was not consistent with CA section 86 which specifies that all notices that need to be given under the CA can be served pursuant to the service rules of the Rules of Civil Procedure or by registered or certified mail. They argued that faxing is only allowed by the Rules for service on lawyers of record, and there were no lawyers of record in this case at the time in question. I do not accept that submission either. One of the service rules, namely Rule 16.08, allows the court to validate service that is not otherwise consistent with the rules, where the court is satisfied that the document came to the notice of the person being served. I am satisfied for the reasons stated above that the written requests came to the notice of both Gillam and Toronto.
[8] Therefore, I find that this motion was necessary, and that Gillam and Toronto should pay Epoxy its costs of this motion. As to quantum, Mr. Maynard argued that only 5 hours should have been spent by Epoxy on this motion. Ms. Smith argued that only 2.7 hours should have been spent. I do not agree. The defendants kept Ms. Assuras in court arguing this motion much of the day on August 8, 2019, not just 2.5 hours. Furthermore, Ms. Assuras had to deliver a supplementary affidavit to deal with the service issues raised by the defendants unsuccessfully. This was not included in the costs outline. I do believe that the costs outline was a little excessive given the issues. But I agree with Ms. Assuras that I will not make a significant discount, as there also needs to be a message that parties cannot treat s. 39 written requests cavalierly.
[9] I, therefore, find that Epoxy is to be paid $4,500 in costs, with Toronto to pay $2,250 and Gillam $2,250. These costs must be paid in 30 days. I have signed the draft order accordingly, and it can be picked up for the purpose of having it issued and entered.
DATE: August 9, 2019 __________________________
MASTER C. WIEBE