COURT FILE NO.: CV-14-5809
DATE: 2019 08 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PEEL CONDOMINIUM CORPORATION NO. 260 Plaintiff
AND:
BRISTOL CONTRACTING & MAINTENANCE INC. o/a BRISTOL CONTRACTING and BRISTOL PRO CONTRACTING LTD., Defendants
BEFORE: Trimble J.
COUNSEL: C. Jaglowitz, for the Plaintiff
L. Klug, for the Defendants
HEARD: August 21, 2019
ENDORSEMENT
Nature of the Motion
[1] The Plaintiff moves for summary judgment for return of money it advanced to the Defendant on account of a contract it entered into with the Defendant for upgrades to the condo building’s hallways. Bristol quoted $870,100.00 inclusive of H.S.T. The contract was signed on July 2, 2014. On the same day, PCC 260 issued a cheque to Bristol Contracting Services Limited of $196,620.
[2] The board of PCC 260 changed shortly after the contract was signed. It terminated the contract and requested return of the payment. It agreed, however, that it would pay for any expenses incurred by Bristol because of the contract, subject to proof of the expense. Bristol has not returned the money nor provided proof of its expenses. It says that the payment is forfeit.
[3] The litigation began by application but was converted into an action on consent. Documents have been exchanged. No oral examinations for discovery have been held, but cross-examinations on affidavits have been conducted.
Result
[4] The Plaintiff’s motion is dismissed. This matter should proceed to trial. If the parties can certify to the Court that the trial of this action will take 4 or fewer days to try, the parties may obtain a “week of” trial date from the trial coordinator. Such a date may occur before the January, 2020 trial sittings.
Analysis
[5] At its heart, the central issue on this motion is the nature of PCC 260’s payment to Bristol. Is it a deposit which binds the contract and secures performance, and is not refunded if the party claiming the refund breached the contract (see: Comonsents v. Heatherington, 2006 3779, at para. 14; March Bros. v. Banton, (1911), 1911 74 (SCC), 45 S.C.R. 338, at pg. 340; and Symonds v. All Canadian Hockey, 2009 CarswellOnt 46466, at para. 26)? Is it an advance payment which is refundable? Is it a pre-estimate of liquidated damages, in which case it is not refundable unless it is a penalty because it is not a reasonable pre-estimate of damages at the time the contract was entered into (see: C.G.E. v. Canadian Rubber, [2015] 52 S.C.R. 349; Peachtree v. 857 Ont. Ltd., 2005 23216 (ON CA), [2005] O.J. No. 2749, at para. 23 to 24; Kechnie v. SunLife, 2016 ONCA 434, at para. 18)?
[6] There is no doubt that if the motion judge can fairly and justly resolve the action on a motion for summary judgment on the basis of the written record, s/he should do so and save the parties and the court expense and delay that accompanies a full trial (see: Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 SCR 87, paras. 23 to 24). Even if there is a genuine issue for trial, the motions judge may use the expanded powers under Rule 20.04 (2.1) if doing so will create a fair and just result while serving the goals of timeliness, affordability, and proportionality. In other words, does the procedure crafted under Rule 20.04(2.1) give the judge a “full appreciation” of the evidence and the issues required to make the findings necessary to dispose of the matter fairly and justly (see: Landrie v. Holy Redeemer, 2014 ONSC 4008, at paras. 36 to 44)?
[7] In this case, the Plaintiff says that on the record before me, I have a full appreciation of the facts and issues to determine the action fairly and justly. I disagree and dismiss the motion. There are several issues that require the trial of this action because they turn on credibility and/or, for which more evidence is required than is provided in the record before me. These include:
Why did the PCC make the payment to Bristol and why did Bristol accept it?
What is the juristic reason (if any) for Bristol to keep the PCC’s payment, assuming it is not a deposit or an appropriate pre-estimation of liquidated damages?
If the advance represented a liquidated damages provision, what is the evidence that it was a reasonable pre-estimate of damages?
What evidence is there to support unconscionability of Bristol’s keeping the advance under the unjust enrichment test?
[8] In addition, the contract is silent as to other significant terms such as the commencement date of the work, how and when payment is to be made, how and under what circumstances the contract may be canceled or terminated. There are other difficulties with the contract. There are other questions which require evidence.
[9] Notwithstanding that the contract is silent on payment in advance, the only evidence as to why an advance was delivered is that of one of the former directors who said the payment was made because it was customary to do so.
[10] The reason for the payment being made by the Plaintiff or accepted by the Defendant (i.e. whether a deposit, prepayment, or liquidated damages) is not clear. Evidence will be required on this issue since the contract was silent on the point and the intentions of the parties must be determined with respect to the nature of the advance.
[11] Similarly, the nature of the payment is a question relevant to any juristic reason available to the Defendant to keep the payment under the test for unjust enrichment.
[12] Any agreement or contract must be interpreted as a whole, using the language the parties selected, within the circumstances that existed at the time the contract was made, using the words in their ordinary meaning, and interpreting the contract to make commercial sense. The “factual matrix” or circumstances surrounding the formation of the contract can be used to clarify the intentions of the parties at the time that the contract was entered into but cannot be used to override the expressed intentions of the parties or to create an ambiguity in the expressed intention where none existed. The “factual matrix” comprises the objective facts that surrounded the making of the contract. It does not include subjective opinions or evidence about what the parties intended or thought the words meant. (see: Goodlife v. Roch Dev’ts., [2019] O.J. No. 412 (C.A); Primo Polotiano v. Brown, 2012 ONCA 362, at paras. 68 to 72); and Sattva v. Creston Molly, 2014 SCC 53).
[13] In this case, the contract does not provide for a prepayment of any sort. Therefore, the nature and reason for it can only come from the factual matrix surrounding the contract and the payment.
[14] Further, and there is an issue with respect to the proper Defendant. PCC 260 issued its cheque to Bristol Contracting Services Limited, which is not a legal entity. The Defendant Bristol Pro Contracting Ltd. is a corporation carrying on the business of the general contractor but was incorporated after the contract was entered into and the payment made. Bristol Contracting and Maintenance Inc. is a corporation carrying on the general contractor business as well. There is common ownership and control of these two corporations. The Defendants have admitted that Bristol Contracting Services Limited is really Bristol Contracting and Maintenance Inc. The Plaintiffs have kept Bristol Pro in this action in the event that the advance that the Plaintiff made was transferred between corporations to put the money out of reach of the Plaintiff in this litigation.
[15] When I asked whether evidence was required to determine which of the Bristol Defendants was the appropriate Defendant, the Plaintiff asked for judgment against Bristol Contracting and Maintenance Inc., only. In essence, the Plaintiff asked for partial summary judgment.
[16] Issuing summary judgment against one of the Bristol Defendants leaves the other Bristol Defendant in the action and gives rise to the possibility of inconsistent findings. In such circumstances, partial summary judgment is inappropriate (see: Butera v. Chown, 2017 ONCA 783).
Costs
[17] The Defendants are successful on this motion and are presumed entitled to costs. Who should pay whom and in what amount will be addressed in writing.
Submissions are limited to three double-spaced, typewritten pages excluding bills
of costs. The Defendants’ are to be served and filed by 4 p.m., 27 September, 2019 and the Plaintiff’s by 4 p.m., 11 October, 2019.
Trimble J.
Date: August 30, 2019
COURT FILE NO.: CV-14-5809
DATE: 2019 08 30
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: PEEL CONDOMINIUM CORPORATION NO. 260 Plaintiff
AND:
BRISTOL CONTRACTING & MAINTENANCE INC. o/a BRISTOL CONTRACTING and BRISTOL PRO CONTRACTING LTD., Defendants
COUNSEL: C. Jaglowitz, for the Plaintiff
L. Klug, for the Defendants
ENDORSEMENT
Trimble J.
Released: August 30, 2019