COURT FILE NO.: 18-75220
DATE: 2019/10/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Exel Contracting Inc., Plaintiff/Moving Party
AND
Jean Daoust Construction Inc., Defendants/Responding Parties
AND
Ottawa Housing Corporation/La Société de Logement Ottawa, Defendants/Responding Parties
BEFORE: Justice A. Doyle
COUNSEL: Jonathan Collings, Counsel for the Plaintiff
Marie-Pier Dupont, Counsel for the Defendant Jean Daoust Construction Inc.
No one appearing on behalf of Ottawa Housing Corporation
HEARD: September 5, 2019
Decision on Summary Judgment Motion
Overview
[1] The Plaintiff, Exel Contracting Inc. (“Exel”) has brought a motion for summary judgment in two related lien actions against Jean Daoust Construction Inc. (“Daoust”).
[2] Daoust and Ottawa Community Housing Corporation (indicated as Ottawa Housing Corporation in the title of proceedings, hereinafter referred to as the “OCHC”) had entered into a contract (“prime contract”) for the revitalization of the exterior of 380 Murray Street, Ottawa property (namely referred to as “property”) at a cost of approximately 7 million (i.e. the “OCHC project”). Exel, which operates a business as a landscaping contractor, had contracted with Daoust to provide landscaping, excavation, backfill, and paving on the OCHC project. Exel had a subcontract with Adria Paving (“Adria”) for asphalt pouring.
[3] This action is one of six actions related to the project. Daoust has brought an action against the OCHC for payment (“main action”), and the OCHC has counterclaimed for a set-off. One of the allegations raised in the OCHC’s pleadings is the delay by Daoust in finalizing the work as per their contract.
[4] The OCHC alleges in its statement of defence that Daoust not only failed to complete the work required by its contract but failed to do so in a timely fashion. The original date for the completion of the contract was December 31, 2016, and it became apparent that Daoust was not able to perform the contract to insure it met the projected date. It did not meet the first date of July 26, 2017, which was then later extended to October 31, 2017, and there was concern that the contract would not be completed before winter. It counterclaims a set-off of $429,741.78 against any amounts owing to Daoust due to deficiencies.
[5] In the main action, the OCHC brought a third-party claim against its consultants Ruhland regarding issues with Ruhland’s original design for the podium landscaping causing delay with the changes. In addition, another action will be commenced by the OCHC against Ruhland for additional costs incurred due to the Ruhland’s alleged negligence and contract breaches.
[6] Daoust has brought a third-party claim against Exel in the main action, and other parties have been added.
[7] The OCHC project included work on balconies, fencing, landscaping, and garage roofing. Exel was on the OCHC project’s site from October 11, 2016 to October 27, 2017 pursuant to the contract for a price of $570,065.00 plus HST. Exel also billed approved extras in the sum of over $312,000 pursuant to 20 Change Orders.
[8] A-Con Construction Limited (“A-Con”) was a subcontractor of Daoust that worked with concrete. Alti Construction Ltd (“Alti”) was a subcontractor of Daoust and was involved in waterproofing and structural repairs.
[9] Norstar Windows & Doors Ltd (“Norstar”) was a subcontractor of A-Con and was involved in the balcony portion of the project.
[10] Ruhland & Associates (“Ruhland”) was OCHC’s engineering consultant for the landscaping of the project and provided construction and administrative services.
[11] WSP Consulting Engineers (“WSP”) was OCHC’s engineering consulting firm who acted as the lead consultant on the project.
[12] The prime contract between Daoust and the OCHC was in the sum of $7,173,949.56 plus HST and extras. It was to begin on August 10, 2015 and to be substantially performed by December 31, 2016. The contract was terminated by the OCHC on November 2, 2017, as it alleges that the work was not completed in time.
[13] There is some dispute as to the cause of the delays which impacted Daoust’s activities, and the finger is pointed to a number of players in this project. Daoust alleges that the OCHC and its consultants, in part, caused the delay, as they, among other things, failed to provide information in a timely manner, issued several change orders, and delayed the issuance of bid documents.
[14] Daoust also alleges that these substantial changes, some as late as October 5, 2017, impacted the schedule and affected the placement of the asphalt. The placement of the asphalt is weather dependent and was in the scope of work to be completed by Exel.
[15] Exel states that it did not cause delay, and that any delay was caused by Daoust’s inattention to scheduling requirements and its inadequate project oversight. Exel states that the work was substantially completed with the exception of the asphalt paving, which was removed by the OCHC from Daoust. It also states that Daoust placed an unreasonable pressure on it to meet the October 31, 2017 deadline, especially given the number of change directives.
[16] On consent of the parties, Exel is granted leave to bring this motion for summary judgment pursuant to s. 67(2) of the Construction Lien Act[^1].
[17] The OCHC did not participate in this motion.
The Legal Proceedings
[18] On January 12, 2018, Daoust filed a lien and commenced a claim against the OCHC under the Construction Lien Act in the amount of $1,671,356.00 for breach of contract, unjust enrichment, and quantum meruit.
[19] Daoust pleads that it provided all the services as per the contract, and that the aforementioned sum is due and owing to Daoust. Daoust denies that the OCHC had any right to terminate the prime contract, or to claim set-off against Daoust.
[20] The OCHC defended the claim and counterclaimed by way of set-off the amount of $429,741.78 plus HST and issued a third-party claim against Ruhland.
[21] In addition, Daoust crossclaimed against the OCHC for contribution, indemnity, or other relief over any amounts for which Daoust may be found liable to Exel.
[22] Exel had been involved in some of the discussions in the above claims but had not, through inadvertence, been served with the third-party claim at the time of this hearing.
[23] Daoust filed a reply and defence to counterclaim and a third-party claim against Exel for contribution and indemnity for amounts for which Daoust might be found owing to the OCHC, as they alleged that Exel failed or refused to complete its work by October 31, 2017. Daoust alleges that Exel is at fault for the OCHC’s termination of their contract with Daoust.
[24] The OCHC’s pleadings indicate that there were a number of extensions, and in the summer of 2017, OCHC knew that Daoust’s work was six months behind and Daoust would not meet its deadline of July 26, 2017. Since the OCHC believed that there was a considerable amount of work to complete, the OCHC sent out a notice in writing of default pursuant to their contract indicating that Daoust was in default of the contractual obligations. They both agreed to extend the contract to October 31, 2017.
[25] On October 27, 2017, the OCHC requested a final deadline as it appeared that Daoust would not be able to meet the October 31, 2017 deadline. It alleged that Daoust did not provide one.
[26] On October 28, 2017, Daoust forwarded a letter to Exel requesting the completion of the contract within three days.
[27] On October 29, 2017, Exel wrote to Daoust indicating that due to the change of specifications, it could lay the asphalt for an extra cost but with a change to the warranty set out in the original contract. It expected the OCHC to approve the extra amount requested for the installation of the asphalt on insulation which had not been anticipated in the original contract.
[28] On July 11, 2017, A-Con issued a claim against Daoust and the OCHC. A month later, A-Con discontinued the claim against the OCHC. It claimed a payment of $402,871.18 for an outstanding balance for its materials supplied and services rendered.
[29] On August 4, 2017, Norstar issued a claim against Daoust, the OCHC, and A-Con. It eventually discontinued as against the OCHC. Daoust defended the claim and cross-claimed against A-Con and Norstar. In its cross-claim against A-Con, Daoust claimed damages in the amount of $200,000.00 arising out of the breach of contract and contribution and indemnity for any amount found owing by Daoust to Norstar.
[30] On September 22, 2017, Alti issued a claim against Daoust for a payment of $173,467.86, which is the balance owing on its subcontract with Daoust. Daoust defended and counterclaimed, stating that it had paid all amounts owing and claimed a set-off of $47,000.00 with respect to defects, deficiencies, and delay issues.
Issues
[31] The issue in this matter is:
- Is there a genuine issue requiring trial, and should this Court grant summary judgment for monies owed to Exel by Daoust for its work on the OCHC project?
[32] In determining this issue, the Court will consider whether granting summary judgment poses a risk of an inconsistent finding. Did Exel cause any delay in the project that resulted in the action between Daoust and the OCHC? Put another way, will the Court, by granting a partial summary judgment, risk an inconsistent finding with the main action between the OCHC and Daoust of which Exel is a party to?
[33] Finally, as directed by the Court of Appeal for Ontario in recent cases when cautioning against partial summary judgment, is granting summary judgment appropriate having regard to the litigation as a whole?
Exel’s Position
[34] Exel submits that there is no genuine issue requiring a trial, as the evidence establishes that the work was completed as per the contract. It submits that Daoust has not put its best foot forward to establish why Exel should not be paid beyond making bald allegations that there was a slight schedule delay near the end of the contract which caused the OCHC to terminate their contract with Daoust.
[35] Exel submits that there is no evidence before the Court that it did not complete the contract, and that the delay in Daoust fulfilling their obligations under its contract with the OCHC was not in any way or manner the responsibility of Exel.
[36] In addition, WSP certified that a vast majority of Exel’s claim is proper, due, and owing. Daoust has not disputed this.
[37] Daoust has neither provided evidence to establish that there is a causal connection between Exel’s work on the project and the termination by the OCHC of their contract with Daoust. In the OCHC’s termination, it does not mention any fault placed on Exel. In fact, after Daoust was removed from the contract, the OCHC contracted with Exel for them to complete the work.
[38] Joseph Krekeler, Daoust’s superintendent, was on the site nearly on a daily basis and completed the daily reports and there are no reports or issues with Exel’s work.
[39] Any issues that arose on the project were between the OCHC and Daoust, specifically with the issue of the asphalt to be poured on Styrofoam.
[40] Exel’s invoices were not challenged by Daoust.
[41] Any deficiencies from Exel are minor; they total an amount of $1,300.33, which is not an issue that requires a trial.
[42] Daoust’s pleadings contain purported set-off claims against Exel for its delays without any particulars or evidence.
[43] Exel also indicates that even though they are aware of the main action, they have not been served with Daoust’s third-party claim.
[44] Sufficient funds have been held back by the OCHC as a holdback to satisfy this Claim.
Daoust’s Position
[45] Daoust submits that granting a summary judgment would risk inconsistent findings in a series of related matters. This action is one of many related to a major construction project.
[46] It submits that there is a genuine issue requiring a trial, as the main action, which also involves Exel, deals with some of the same critical issues in this case, i.e. delays in the project and what, if any, responsibility lies on Exel for the OCHC’s termination of Daoust’s contract.
[47] In their third-party claim against Exel in the main action, Daoust alleges the following:
At all material times, Exel was aware that the OCHC required strict compliance to the revised schedule set in August 2017 to October 27, 2017, then extended to October 31, 2017;
That Exel failed to complete the work in a timely manner in accordance with the project schedule;
Exel’s failure caused the OCHC to terminate the prime contract with Daoust on November 2, 2017;
Daoust claims a counter claim set-off of $429,741.78 if they are responsible to OCHC;
At the time of termination of the contract, the majority of the work to be completed under the prime contract fell under Exel’s scope of work relating to the architectural landscaping;
In addition, Exel as a subcontractor not only breached its subcontract terms, but alternatively owed Daoust a duty of care to exercise all reasonable care, skill, and diligence in carrying out its work. They breached that duty which resulted in loss;
This included a failure to hire competent and skilled employees and/or sub-subcontractors;
Exel failed to employ sufficient employees or sub-subcontractors to complete the work in a timely manner; and
Daoust also alleges that Exel intentionally interfered with Daoust’s contractual relations with the OCHC.
[48] Granting summary judgment would not further the objectives of proportionality, expeditiousness, and cost-efficiency.
[49] By inadvertence, the third-party claim was not served on Exel, but Daoust will do so once it obtains an order under the Construction Lien Act[^2] permitting it to do so. In any event, Exel was aware of this Claim as of February 2019 and is aware of the details of the main action, although they have not been an active participant.
Legal Principles
[50] Rule 20 of the Rules of Civil Procedure[^3] provides that a court must grant a summary judgment when there is no genuine issue requiring trial. The powers of the Court are set out below:
20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[51] Where a summary judgment is refused or granted only in part pursuant to rr. 20.05(1)-(2), the Court can specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances.
[52] As stated in Hryniak v. Maudlin[^4], there is no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the Court to make necessary findings of fact; (2) allows the Court to apply the law to the facts; and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.
[53] A responding party is required to put its best foot forward and cannot simply assert a bald denial; rather, it must set out relevant evidence with specific facts and coherent evidence thus demonstrating that there is a genuine issue for trial.
[54] In Service Mold + Aerospace Inc. v. Khalaf[^5], the Court held that partial summary judgment should not be granted unless the Court is satisfied that the issues can be readily bifurcated without creating an inefficient or duplicative proceeding or inconsistent findings. This case follows a number of other Court of Appeal for Ontario decisions cautioning against partial summary judgment.
[55] The Court of Appeal for Ontario has indicated in a number of cases that judges should be cautious when considering motions for partial summary judgment.
Analysis
Introduction
[56] I will deal with some general findings, then Exel’s evidence followed by Daoust’s evidence, the case law and my conclusions.
[57] I find that there is a genuine issue requiring trial.
[58] This case is part of a construction contract project which involves a number of players, including an owner, the general contractor, subcontractors, and sub-subcontractors. The issues in this project require a determination as to who should bear the responsibility for the delay and the consequential damages. Each sub-trade brought an action under the Construction Lien Act[^6]against the owner and Daoust seeking payment.
[59] The Court finds that the changes requested by the OCHC may have caused a ripple effect of issues regarding the completion of the project in a timely manner. These changes could have affected Daoust, Exel, and its subcontractors’ timeliness in the completion of the work.
[60] There is an issue as to whether or not Exel was responsible in any way for the delay of the performance of the contract by Daoust and the OCHC in accordance with the new deadlines.
[61] As will be set out below, Exel’s participation and actions, directly and through their subcontractor, Adria, in the final stages of the Daoust contract with the OCHC, are relevant in the main action.
[62] Daoust specifically pleads that “as a direct result of Exel’s failure to perform the work in a timely manner and Exel’s failure to complete the work in accordance with the revised schedule, the Owner (i.e. the OCHC) purported to terminate the prime contract with Daoust.”
[63] As stated in Hryniak, in determining whether the “interests of justice” inquiry supports a summary judgment, the court must consider the consequences of the motion in the context of the litigation as a whole.[^7] Karakatsanis J. further stated the following:
[60] […] if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.[^8]
[64] In addition, as Exel’s subcontractor, Adria is implicated.
[65] In my view, Exel is attempting to circumvent the main action by obtaining a determination of the facts only in its matter thereby obviating the need to defend the third-party claim in the main action.
[66] In summary, Exel has been brought into the main action because if the Court finds that OCHC lawfully terminated the contract, and, if the termination was justified due to the delay, there remains the issue of what, if any, did Exel play in the delay. One of the OCHC’s allegations is that one of the reasons for its termination of the contract was the asphalting, which was the responsibility of Exel.
[67] For the reasons that follow, the Court dismisses this motion for summary judgement. In my view, the trial Judge who will ultimately hear the trial on the main action, which will include the claims of the various subcontractors, will have a fuller appreciation of the relationships and details of the project. If I were to rule on Exel’s portion of the claim, e.g. that it is entitled to be paid and that it was not responsible for any of the delay alleged by the OCHC against Daoust, there could be a risk of an inconsistent finding; the trial judge may find that Exel did contribute to the delay, which would affect the damage awards.
[68] Along with the main issue of delay, affidavits filed by Daoust has raised other concerns regarding Exel’s work. Exel indicates that these small concerns amount to a minimal amount, and that the Court could still grant summary judgment and hold back $40,000.00 for these outstanding issues. There is no evidence as to how Exel arrived at this figure.
The OCHC Project
General Observations
[69] A detailed review of the events leading up the termination of the contract by the OCHC with Daoust is set out in the extensive record filed before this Court.
[70] The evidence discloses that the players involved in this project realized that there were issues at the end of the OCHC project and in some form of other, they could be implicated in the termination by the OCHC of the contract with Daoust.
[71] The general outline of events is as follows:
In July 2017, Exel knew that Adria had raised an issue with respect to the pouring of the asphalt over insulation and protective board.[^9]
The August 23, 2017 notice of default forwarded by the OCHC to Daoust required commitment regarding completion of the contract;
In August 2017, Exel and Daoust had discussed the importance of the timelines for completion, and that Exel would advise them if there were going to be any other delays.[^10] This would include any subcontracting work.[^11]
In September 2017, Daoust asked Exel for a schedule for the remaining steps and Exel had proposed October 27, 2017 and the deadline would be October 31, 2017;
The October 2017 delay is a crucial element of the OCHC termination, and part of the delay involved work to be completed by Exel which included paving, planting trees, installing benches, and landscaping;
On October 5, 2017, WSP requested a change that is allegedly not due to an error in calculation, but because of an oversight regarding the allowable load.
On October 17, 2017, Exel told Daoust that it would meet the timeline.[^12]
On October 19, 2017, Adria forwarded a request for more funds to complete the work due to the need of an additional paver than was originally provided for in the contract, and for a change of the warranty. Upon receipt, Daoust forwarded this request and recommending the same to the OCHC.
On October 23, 2017, WSP sent a changing directive to Daoust, who then forwarded it to Exel.
On October 29, 2017, Exel advised Daoust that it would not meet the October 31, 2017 deadline.
The OCHC and Daoust agreed on the new deadline of October 31, 2017;
Daoust was under the impression that Exel would meet its stated deadline until they were notified days before the October 31,2017 deadline that Adria was refusing to complete the work as they wanted more money and would not provide a warranty;
Exel had received a copy of the OCHC’s letter dated October 27, 2017 regarding the default and the need to complete the paving by October 31, 2017;
The statement of defence filed by the OCHC puts the delay front and center and alleges that work was not completed in a timely fashion;
On November 2, 2017, the OCHC terminated the contract as Daoust missed the October 31, 2017 deadline.
[72] Exel was aware that Adria was causing part of the delay, and that their failure in timeliness could result in issues. Afterwards, Adria would not complete the asphalt work, as the OCHC refused to agree to their demands.
[73] The OCHC was demanding the deadline be met, and in their letter to Daoust prior to the termination, they raised a number of issues. These included Exel’s scope of work, which mainly concerned the asphalt.[^13]
[74] The letter stipulated that the contract would be terminated if the paving issues were not solved by the agreed upon date.[^14]
Exel’s Evidence
[75] Exel’s own project manager, Richard Goulet, admitted that the OCHC added changes to the specifications which caused delays.[^15]
[76] Goulet also admitted that Exel was intricately involved in the final steps of the project before the OCHC terminated its contract with Daoust.
[77] In his cross-examination, Goulet admitted that when he signed his first Affidavit dated September 6, 2018 in support of the motion for summary judgment, he may not have been aware that one (1) of the questions to be determined in the main action between Daoust against the OCHC is whether Daoust delayed in completing the contract.[^16]
[78] Part of the main action’s determination will include whether any fault should be borne by Exel and other subcontractors for the termination of the contract.[^17]
[79] Daoust’s position is that they completed the contract, but that if there were issues, they were caused by the subcontractors.[^18]
[80] In his Affidavit, Goulet stated that Daoust had not provided any evidence to support their claim that Exel caused the termination of its contract with the OCHC, which was sworn before he had seen Daoust’s response to this allegation.
[81] Goulet had reviewed Joseph Krekeler’s affidavit with Daoust’s daily journal entries which were marked as an exhibit to his Affidavit. General contractors record these entries to report on daily activities, as well as to outline the progress and outstanding work. Certainly, this evidence will be explored further under cross-examination at the trial as it details the work of the various companies involved in the project.
[82] Most communication regarding important matters relating to the contract between Exel and Daoust was done by email.
[83] The Landscape Information Bulletin issued on July 14, 2017 was relevant to the work Exel was doing. It spoke of a light weight fill requirement as an insulation layer, and of how the pavement would be put on top of it.
[84] In an email dated July 10, 2017, Maxime Belisle informed Jean Daoust that Adria, the asphalt subcontractor, would not be able to pour asphalt on top of the protective board without damaging the insulation underneath it. This was forwarded to Ruhland, and Goulet was copied on it. Goulet was aware of this issue with Adria.
[85] A letter dated August 23, 2017 from the OCHC to Daoust indicated some critical issues as follows:
Given the foregoing, please consider this letter to be formal notice in writing, of default in accordance with GC7.1.2 of our contract.
Per Section 7.1.2 of the CCDC2 Contract, Daoust is to correct the items listed above, as well as those of the enclosed correspondence from WSP, within five working days of the date of this Notice. We recognized that it may not be feasible to correct all items within five working days, but do require Daoust to provide OCHC with an acceptable schedule for correcting these issues. An overall commitment of the project, within five working days of today’s date that is by Wednesday, August 30, 2017 at the latest.
All work must be completed no later than October 6, 2017.
[86] In this bulletin, the OCHC accepted the proposed schedule on August 29, 2017, and the OCHC required that Exel commit to meeting that schedule by September 7, 2017.
[87] In an email from Jean Daoust to Ian Rowbotham (president of Exel) and Goulet, he states: “Please note that the OCHC have notified Daoust Construction, that Exel Contracting must return to site by no later than September 5, 2017” […] “all work must be completed no later than October 6, 2017.”
[88] The OCHC required Daoust to provide a detailed schedule by August 30, 2017.
[89] Daoust had advised Exel regarding the dates, and Exel was to advise Daoust if there were any changes or minor adjustments that must be coordinated immediately with the site superintendent.[^19]
[90] Goulet said he understood that if Exel were to consider any changes or minor adjustments, they would advise Daoust immediately.[^20]
[91] In an email from Goulet to Daoust, copying Rowbotham, he committed to meeting the schedule.
[92] This would encompass the work of the subcontractors.[^21]
[93] Goulet acknowledged that in a letter from Daoust to the OCHC, there was a commitment from Exel.[^22]
[94] He admits not being familiar with the contract clause between Exel and Daoust which stated that if Exel failed to comply with its obligations, Daoust could give Exel written notice regarding its default and instruct Exel to correct the default in three working days.[^23]
[95] He admitted that Rowbatham had sent an email dated October 17, 2017 to Jean Daoust stating that “we are still on schedule to complete everything at 380 Murray Street”.[^24] This was Goulet’s understanding too. The email goes on to say:
I spoke to Andrew Dinardo from Adria our paving and concrete sub and he confirmed that he has the concrete schedule for late this week, early next week and that the paving schedule for the middle until end of the next week. We have all the plans ordered and we’ll extend our warranty until month end, to as per the schedule. I will ask Richard Goulet to provide a revised schedule on Wednesday.
[96] According to Goulet, the work would be completed by October 31, 2017.[^25]
[97] An email dated October 29, 2017 from Goulet to Daoust (copying Rowbotham and Eli Samra (concrete paver’s subcontractor)), stated “[t]he LIB18, came out with insulation to be installed in the three (3) center big planters, that require a lot of insulation manipulation”.[^26]
[98] There was a change to directive #1 dated August 6, 2017 regarding insulation and Thinergy A foundation from the lower podium area. Upon receipt of this change directive, he did not advise anyone that this would cause delays.[^27]
[99] He would have been aware that these changes would have required more laborers and longer hours to execute.[^28]
[100] He was also aware that the OCHC wanted it completed by October 31, 2017. It was the delivery date imposed by the OCHC not Daoust.[^29]
[101] Goulet states in his Affidavit that they told him three times between October 6-24, 2017 that it would be impossible to lay the asphalt in that timetable.
[102] In an email from Goulet to Daoust dated October 29, 2017, he states: “OCHC has even wanted to remove the asphalt from our contract, saying that they had no trust in our asphalt sub Adria.”[^30]
[103] Exel decided to keep Adria on the project[^31]even though if Adria did not complete the work on a timely basis, this could cause problems for Daoust vis à vis the OCHC.[^32]
[104] Goulet admits that the first time he asked for an extension was in an email dated October 29, 2017.[^33] Goulet admits that this may have been the first time that he advised Daoust in writing that he would need an extension;[^34] this was due to Adria not being able to meet the deadline and due to the change in the scope of the work.[^35]
[105] Adria said that they would not be able to meet the deadline.[^36]
[106] Then, on October 30, 2017, Adria refused to complete the work unless it received more money, and the OCHC says they would not be paying more money.[^37]
[107] They lost three days of work due to rain beginning September 6, 2017.
[108] WSP and Ruhland and Associates made several changes to the directives.
[109] LIB No. 19 dated July 25, 2017 and LIB 20 dated July 21, 2017, were changes from the OCHC.[^38]
[110] An email dated October 16, 2017 from Goulet (Krekeler copied) to Jean Daoust and Linda Barkley (who used to work for Daoust) confirmed that he was meeting with Adria the next day regarding the scheduling of asphalt. He indicated that the concrete, soil, driver stone, and podiums would be done that week.[^39]
[111] There was an on-site meeting on October 17, 2017.
[112] There was an email dated October 19, 2017 from Adria to Goulet regarding the warranty conditions and the additional cost.
[113] Goulet provided that information to Daoust which was forwarded to the OCHC.[^40]
[114] On October 23, 2017, the OCHC emailed Daoust that they would not accept the warranty conditions and additional cost for the installation of the asphalt. Goulet recalls that OCHC refused.[^41]
[115] Jean Daoust sent an email dated October 24, 2019 to Goulet and Adria regarding the concerns raised by Adria to try to find a solution.
[116] There was an email from Joe (Joseph Krekeler) dated October 25, 2019 to Goulet regarding the grinding of the tree stump and tree planting to ensure that Exel could meet the deadline.
[117] A further email was sent on October 25, 2017 from Linda Barkley of Daoust regarding a list of outstanding items from Exel to make sure the deadline was reached.
[118] On October 28, 2017, a notice of default was forwarded from Daoust to Exel providing Exel with three working days to correct and complete the work, which was forwarded to Adria.[^42]
[119] On October 30, 2017, an email was sent by Goulet to Adria which set out the conditions that needed to be met by them and which requested an answer by the end of the day.[^43]
[120] Adria advised Goule that no work would proceed that day on October 31, 2017, as they had not received any answers regarding the additional price and limited warranty that they wanted. They advised at 5:51 a.m. that they were not showing up.[^44]
[121] On November 2, 2017, Exel told Daoust that Adria could only attend on November 6, 2017.[^45]
[122] Within 20 minutes, Daoust responded by email saying that it was imperative that he try to get Adria to show up on site on Friday November 3, 2017 to perform the asphalt work, and that it had to be done as soon as possible.[^46]
[123] The OCHC asked Exel to complete the project after Daoust had been removed from the project.[^47]
[124] Daoust had told Exel on October 17, 2017 that they would help Exel in any way that they could to meet the October 31, 2017 deadline.[^48]
[125] Daoust also said that any costs associated with Exel not completing the work by October 31 would be deducted from Exel’s balance without further notice.
[126] The paving issue was an issue of money and warranty conditions, as well as an issue related to the OCHC’s directive that asphalt be applied over insulation.[^49]Another company eventually completed the paving.
[127] Goulet admits that the asphalt placement is part of Exel’s scope of work,[^50] and the application of the asphalt is also a part of Exel’s scope of work.[^51]
[128] It was admitted that one of the reasons that the contract with the OCHC and Daoust was terminated by the OCHC was because the paving was not completed during the time set out by the latter.[^52]
[129] The OCHC provided a brief of a document setting out costs for rectification of issues identified in the project. In his affidavit, Goulet stated the issue of removing the fencing indicated as Item F was caused by Daoust’s delay in determining the asphalt issue. At his cross-examination, Goulet modified this position and admitted that item “F” for fencing may have been part of Exel’s work, but he was not sure whether they were talking about site fencing.[^53]
[130] Therefore, on the evidence of Exel’s own representatives, Exel had agreed to a deadline in August. Exel knew the project was time sensitive and had agreed to an October 31, 2017 deadline but it had failed to meet it.
Daoust’s Evidence
[131] The following is the summary of Jean Daoust’s (President of Daoust) evidence found in his supplementary Affidavit:
Krekeler confirmed that Goulet was not on site every day, but rather only sporadically, and Krekeler’s communication was with Exel’s foreman;
He also communicated with Rowbotham (president of Exel), Tracey Rowbotham (vice president of Exel) and Yvette Norman (contract administrator at Exel);
Exel’s invoices were sent in every progress billing forwarded to the OCHC;
It is denied that the termination of the contract with the OCHC was due to Daoust’s failure to appreciate the scope of the project and to not assigning appropriate labour;
Daoust alleges that the contract was terminated due to the direct result of not performing the work in a timely manner by October 31, 2017 as per their schedule and commitment;
At the time of the alleged termination by the OCHC, the only subcontractor that had not substantially completed its work was Exel despite Daoust even supplying labourers;
In his affidavit, he set out what he alleges remained outstanding by Exel as of November 3, 2017, when the OCHC wrongfully terminated their contract with Daoust, as well as the amounts to be deducted from the amount owing for deficiencies; and
Daoust stated that the paving and asphalt issues stemmed from changes from the OCHC and its consultants under Change Directives and Change Orders.
[132] The Affidavit of Jean Daoust, sworn on February 4, 2019, sets out in detail all the communications between the players regarding the changes and discussions concerning the completion of the work on the project.
[133] On November 2, 2017, just before receiving the notice of termination from the OCHC, Daoust received an email from Exel stating that Exel would cover the additional price being requested by Adria and that Adria would pave the full area by November 6, 2017. Daoust contacted WSP to set up an inspection for the next day asphalt work.
[134] Specifically, at para. 66 of his Affidavit, Mr. Daoust states the following:
Daoust Construction contract was terminated by OCHC in part as a result of Exel’s inability to execute the change directives issued by the OCHC. Exel was not required to obtain the approval by OCHC of Adria Paving’s quotation for change directives to start the asphalt work per Exel’s subcontractor agreement with Daoust Construction, CA 2008 Stipulated Price Subcontract dated August 30, 2016.
[135] He states that if Exel’s subcontractor, Adria, and Exel had completed its other scope of work, including things such as furnishings, planters, sod, a garbage enclosure fence, and community garden planters, then Daoust would have been able to complete the project as per the approved timeline.
[136] As a result of the main action, Daoust withheld payment from Exel, and it claims a set-off for any amount asserted by the OCHC for back charges, deficiencies, and other costs as a result of Exel’s actions or inactions.
[137] In the letter from the OCHC dated August 23, 2017 to Daoust, a number of their concerns regarding Daoust’s work, which includes a concern that Exel’s quotation for the upper podium included a cost for the reinstatement of the pavers due to construction of the concrete curb, are stated: “OCH should not be responsible for these costs as this work is required due to poor sequencing of the work by Daoust”.[^54]
[138] Further to that same letter on page 3, it is stated that their consultant is of the opinion that Daoust’s execution of the work under the contract was not completed to a substantial degree and that Daoust continues to be in default.
[139] They ask that the deficiencies be corrected in five working days, or to provide an acceptable schedule for completion and correction of the outlined deficiencies within five working days.
[140] Daoust’s correspondence with the OCHC from August 30-31, 2017 deals with the allegations, but Exel is not specifically mentioned.
[141] There is an email from Daoust to Exel dated August 27, 2017 regarding a change order and time lines of work to be completed by October 6, 2017.
[142] There are more change orders from the OCHC to Daoust on Sept 20, 2017.
[143] In Daoust’s February 11, 2019 affidavit, he identified an alleged precise step deficiency which was under Exel’s scope of work.[^55]Also, another deficiency identified by the OCHC was the lower podium asphalt paving deficiency. This was later completed by others at a cost of $46,599.06, which Daoust alleges is Exel’s deficiency.[^56]
[144] The fencing deficiency is attributable to Exel, as the fencing surrounding the community garden area was not fully installed to permit Exel's asphalt paving contractor, Adria Paving, to bring its paving equipment and material within the partially fenced community garden areas as agreed to by Exel. As Daoust’s contract was terminated due to non-completion of the asphalt, the community garden’s perimeter fence could not be completed.[^57]
[145] The asphalt aspect taken away from Daoust was not their responsibility, but Exel’s.
[146] The value of Exel’s completed work at the time of the alleged termination by the OCHC of the contract with Daoust was $74,000.00.[^58] There is no evidence that a $40,000.00 reserve holdback is sufficient.
[147] Daoust had to provide its own labourers to supplement Exel’s workforce, and despite this, Exel did not complete the contract on time.
[148] Goulet’s reply Affidavit dated April 4, 2019 responds to the allegations and addresses some of the issues faced by Exel and Daoust at the end of the project:
With respect to the lower podium asphalt work, it was delayed because the method proposed by WSP for the installation was different from the quotation
Adria was prepared to complete the work on a no warranty basis, but the OCHC refused. Adria did not want to complete the work expected which involved a direct pour onto Styrofoam and which was not within industrial standards.
Also, Exel was not a party to the discussions with Daoust and the OCHC, and there was also a delay due to weather.
He recorded his meeting of October 30, 2017 with Jean Daoust and Joe Krekeler, a rep of the OCHC and Adria owner. He raised his concerns regarding the design flaws for the asphalt, and how it would increase the costs and delay the project by two weeks. It rained 50 mm after this meeting.
He advised Joe Krekeler of the concerns regarding the elevation of the precast steps.
[149] On September 20, 2017, due to a dispute regarding measurements for insulation and weight loads on the upper podium, Exel ripped up its partial work.
[150] In the transcript of the cross-examination of Krekeler dated April 18, 2019, he stated:
There were no problems with Exel until the asphalt issue;[^59]
There were issues regarding manpower, and Daoust added some employees to try to work together;[^60]
When changes were requested, he asked for “more forces be brought to site, because we saw in our judgment that the schedule was going to slip.” To help Exel, they supplied two to four men to help their crew;[^61]
There are no issues other than the asphalt issue, and the OCHC had no issues with Exel’s work;[^62]
He raised the issue of 120 pounds per square foot in a meeting with the OCHC on November 2;[^63]
Exel said that it could be between 25 to 35 pounds a square foot;[^64]
There was an omission in the interpretation of the Building Code to permit people of the building to be able to stand on the deck in the event of an emergency evacuation. Therefore, the Podium deck had to be able to support that load, and as a result, they had to get rid of the dead load. Another “11th hour WSP” was a change to the design to “put down insulation to off-weight and create volume” which “only allows us a 65millimetere granular base to be put onto the asphalt”. Later when Adria came to the site a week before laying the asphalt, it questioned and was concerned what the compacted granular material looked like;
There was no issue with puncture repairs to the membrane on the deck;[^65]
There was no issue with the whole upper podium;[^66]
He was concerned about having less than 7 millimeters of asphalt over 65 millimeters of granular material;[^67]
Exel said it was more than likely that it could be done;[^68]
He had “reservations on the risks of putting that kind of temperature of product with only 65 millimeters as a heat shield to insulation.”;[^69]
“Asphalt’s transported in an open truck. There’s a heat requirement and a restriction as to what asphalt can be laid at.”;[^70]
The contract with the OCHC terminated because Exel and Adria did not carry out the work;[^71]
The work was supposed to be done by October 31, 2017, and the “only thing remaining to complete that work was the asphalt.”[^72]
[151] In the transcript of the cross-examination of Jean Daoust dated April 18, 2019 at question 51, he stated that Exel’s “manpower was not up to speed. There was not enough. They weren’t producing enough. They weren’t on top of things. Things could have gone faster. They could’ve been ready. They could’ve been finished. Could’ve been finished in early-late September.”
[152] Therefore, Daoust has put “its best foot forward” and has provided sufficient evidence to confirms that there is a genuine issue requiring tiral.
Distinguishing Cases
[153] Hryniak[^73] directs the courts to consider the interests of justice which requires that the litigation as a whole be considered.
[154] Exel relies on to the case of Summa Engineering Limited v. Selectra Contracting Ltd. et al.[^74] which was upheld by the Divisional Court.
[155] Summa was successful in its summary judgment motion for work on a construction project involving upgrades and an expansion of a control plan which was owned by the Defendant, the town of Penetanguishene. The general contractor was the Defendant Sona, and the electrical subcontractor was the Defendant Selectra.
[156] Summa was Selectra’s subcontractor and was responsible for some of the systems integration and some electrical control systems. After commencing its work, Summa had completed its services and supplied its invoice to Selectra.
[157] Summa argued that the uncontradicted evidence confirms that they completed the work on time and in accordance with the contract, and that there is no genuine issue requiring trial.
[158] Sona argued that there was no evidence as to what Sona owed Selectra and no evidence of the value of work performed by Selectra. It asserted that there are still outstanding cross-claims between Sona and Selectra and the town as against Sona.
[159] DiTomaso J. made the following findings:
Sona never denied Summa’s contribution of work and materials to the project;
No one denied the amount invoiced by Summa;
There were no allegations of any delay or deficiencies in Summa’s supply of services and materials to the project;
There were no allegations of inaccuracies in Summa’s timeliness or the quantum Summa claimed; and
Selectra, its contractor, confirmed the particulars of Summa’s services supplied, totaling the amount claimed by Summa.
[160] Of note is that Sona did not file any material on the motion and adopted a deliberate and tactical approach where it admitted that no materials would be filed.
[161] In the appeal to the Divisional Court[^75], Sona argued that the motion judge did not misinterpret the holdback provision of the Construction Lien Act, and that the burden was on Sona and Eramosa to prove any entitlement to set-off.
[162] In dismissing the appeal, the Divisional Court held that Sona had not put its “best foot forward” and that the motion judge was entitled to assume that the record on the motion was the evidence that the parties would present if there was a trial. Sona filed no evidence to support the fact that they had paid all that was owing to Selectra, subject to the 10 per cent holdback
[163] In returning to the Summa Engineering appeal decision of the Divisional Court, it is notable that Selectra's controller swore that the amounts owed by Selectra to Summa and Eramosa were as claimed by them, and that there were no delays or deficiencies in relation to their work.
[164] In conclusion, the Divisional Court stated that if Sona was putting forth an issue of what was owed to Selectra, then they ought to have provided evidence of that amount.
[165] The Court of Appeal for Ontario cases that warn against partial summary judgment include a case by the name of Hamilton (City) v. Thier + Curran Architects Inc.,[^76] where the owner and general contractor brought an action against the project’s architect who made a third-party claim against the mechanical and electrical subcontractors. The Court of Appeal for Ontario overturned the motion judge’s decision to grant summary judgement for the Defendants in the third-party claims, as the third-party claims were inextricably linked to the issues in the main actions.
[166] In Sound Solutions v. Cladit Siding Solutions Inc. et al[^77], Sound Solutions brought a summary judgment for breach of contract, breach of trust, and dismissal of Cladit’s cross claim. There was no dispute Sound Solution sold panels to Cladit for the sides of a station in Brampton, and that they were delivered and installed. However, Cladit did not pay the balance, alleging deficiencies in colour and size. Dixon was the general contractor who paid Cladit for their work on the project, which included supplying and installing the panels.
[167] The Court found that Cladit did have an equitable set-off due to the deficiencies with the panels. As Sound Solutions had shown that there was no genuine issue for trial regarding its claim for damages for breach of contract, this resulted in the burden shifting onto Cladit to prove that their claim of equitable set-off had a real chance of success. The Court assumed that Cladit has presented all the evidence that it would present at trial to support its claim for equitable set-off regarding the deficiencies.
[168] Since Cladit did not meet its onus of demonstrating that the panels were not the right size and that it incurred costs to remediate the deficiency, it had not put its best foot forward. It had just made a bald allegation that the panels were the wrong size.
[169] With respect to the colour issue, Shaw J. found that the evidence established that Cladit incurred a cost of $2,340.00 to replace the panels that the architect identified as having a colour variation and is entitled to a set-off in that amount.
[170] Shaw J. referred to the Court of Appeal for Ontario’s recent cases discouraging partial summary judgments. However, in this case, he found that the issues raised in the counterclaim and the issues of breach of trust were readily bifurcated from the issues in the main action, and that the summary judgment motion was an effective manner to deal with the breach of contract and equitable set-off. The issues in the counterclaim dealt with the conduct of the parties after the panels had been installed and the deficiencies remedied. There were allegations regarding Sound Solution and its lawyer’s conduct after the panel had been installed. They had contacted Peel and Dixon to request payment and alleged that Cladit had breached its trust obligations and filed a false statutory declaration as to payment of its subcontractors and suppliers.
[171] He also found that partial summary judgment would not delay the resolution of the main action.
Conclusion
[172] For this court to make factual findings when it only has part of the picture of this project would not be in the interests of justice, nor would it meet the objectives of proportionality and cost efficiency.
[173] Exel says they are not at fault and that it is not fair to wait until the main action; there was lost time due to five days of rain, and it is not their fault that the changes to the asphalt did not meet industry standards. They were not privy to discussions with the OCHC nor were they aware of the time pressures.
[174] The case at hand can be distinguished from Summa Engineering Limited,[^78] where the Defendant did not file any responding motion materials. Here, there is evidence of delays in Exel’s performance of its contract. Daoust, as a responding party to this motion, has alleged that Exel caused delays and that there were deficiencies in their supply of materials and supplies to the project.
[175] Daoust has filed significant materials to outline the extent of the project, the different players, the OCHC’s concerns with the contract, and specifically, how Exel is implicated in the deficiencies of the project. More importantly, the filed materials outline how Exel may have had a role to play in the delay in the completion of the contract, which caused the OCHC to terminate its contract with Daoust.
[176] This case is distinguishable from Sound Solutions where the Court stated: “Any findings of fact on the issues of breach of contract and deficiencies are separate and distinct from any findings that need to be made in connection with Cladit’s counterclaim or the claim for breach of trust.”[^79]
[177] In this case, the allegations set out in the counterclaim for set-off and the third-party claim deal with deficiencies in the prime contract, and this affects Exel as a contractor.
[178] There is an issue of whether Exel had knowledge of the importance of meeting the timelines for completion that were agreed upon in August, and Goulet admits to this.[^80]
[179] They knew in July 2017 that Adria had raised an issue with the pouring of the asphalt over insulation and protective board.[^81]
[180] Another issue is that Daoust is strenuously defending the main action; it is pleading that the OCHC wrongfully terminated the contract. Hence, Daoust is in a difficult position on this motion since it is strenuously arguing that there was in fact a delay through no fault of their own and that it was Exel’s issue. This situation has previously been described in the case law.[^82]
[181] Daoust’s argument in the main action does not focus on Exel’s actions, but rather, it cites various reasons for the delay.
[182] There are issues of whether the OCHC owes monies to Daoust, whether any part of that is owed to Exel, whether Exel breached its contract with Daoust, and whether Exel caused the OCHC to terminate its contract with Daoust.
[183] I am guided by Baywood Homes Partnership v. Haditaghi, where the Court of Appeal for Ontario found that the motions judge failed to assess the advisability of a staged summary process in the context of the “litigation as a whole.”[^83]
[184] The Court found that given the complexity of the promissory notes, releases, and transactions, a trial judge on the promissory notes could make findings implicitly inconsistent with the motions judge’s finding of the release being fully valid and effective, and the parties would be bound by this finding. “The process, in this context, risks inconsistent findings and substantive injustice.” [^84]
[185] In Butera v. Chown, Cairns LLP, the Court of Appeal for Ontario was dealing with a partial summary judgment from an action involving former solicitors who had acted for the Plaintiffs in a prior lawsuit that was dismissed due to a successful limitation period defence.[^85]
[186] The Court sets out the reasons for cautioning against awarding partial summary judgments where there is a risk of duplicative or inconsistent findings at trial, as well as when considering whether granting partial summary judgment was advisable in the context of the litigation as a whole.[^86]
[187] The Court went on to state that summary judgment also raises issues that are contrary to the objectives set out 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 action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.
[31] Second, a motion for partial summary judgment may by 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 moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. 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. 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.
[35] Lastly, I would observe the obvious, namely, that a motion for partial summary judgment differs from a motion for summary judgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motion judge considers it advisable, if the motion for summary judgment is not granted but is successful in part, partial summary judgment may be ordered in that context.[^89a]
[188] In that case, granting partial summary judgment on the misrepresentations provides minimal efficiency on the main action of negligence, breach of contract, and Arthur Wishart Act[^87] claims. The Court of Appeal for Ontario found that the misrepresentation claims were largely intertwined with the other claims, and partial summary judgment risked inconsistent results.
[189] In Mason v. Perras Mongenais,[^88] the Plaintiff was suing lawyers involved in the settlement of his matrimonial matter when he discovered he would have a significant tax bill as a result of the manner that he was acquiring the wife’s shares. The respondent, Perras, who was the lawyer involved in the tax advice, was successful in obtaining a summary judgment for a dismissal of the action as it related to him. The Court of Appeal for Ontario found that that the motion judge erred in principle in granting partial summary judgment in the content of the litigation as a whole.[^89]
[190] The Court found that Perras’ liability to the Plaintiff was not an issue that could be easily bifurcated from the rest of the claim; “[t]he nature of the appellant’s claim is such that it is inextricably linked to the claim against the other defendants, especially Chambers.”[^90] One of the issues was whether one lawyer can rely on another lawyer as a conduit to provide advice to their client.
[191] In Vandenberg v. Wilken, the Court of Appeal for Ontario allowed an appeal from the motion judge who granted partial summary judgment declaring the agreement of purchase and sale of a commercial farm real estate transaction valid, and made a finding that there was no unconscionable transaction.[^91] The motion judge failed to consider whether the granting of the summary judgment would create a risk of duplicative or inconsistent findings at trial on the counterclaim and third-party claim; the Appellant’s allegations of unconscionability were intertwined with the validity of the agreement of purchase and sale. The motion judge also made a credibility finding that would affect the counterclaim and third-party claim which could constrain the trial or lead to the risk of inconsistent findings on the same issue at trial.
[192] In addition, the summary judgment did not dispose of the damages, the counterclaim, nor the third-party claim which must proceed to trial, and thus the judgment did not lead to an expeditious and cost-effective process.
[193] I find that in the case at hand, there is a risk of inconsistent findings, and granting summary judgment would not further the objectives of proportionality, expeditiousness, and cost-efficiency as in accordance with Construction Lien Act.[^92] The main action must be set down for trial within two years of the issuance of the statement of claim. That date is January 2020. Once the main action is resolved, all the related actions will benefit from the final court decision.
[194] The Court cannot render a decision in this one sub-action without implicating the main action and all of its players. There is a genuine issue requiring trial.
[195] Since Exel’s responsibility, if any, to the OCHC’s termination of its contract with Daoust is a live issue, it will be determined in the main action, which includes other issues such as the following:
Whether the OCHC owes money to Daoust,
Whether the OCHC is successful in their counterclaim against Daoust;
Whether Daoust will be successful in their third-party claim against Exel and other contractors, which requires a determination of whether Exel breached its contract with Daoust; and
Whether Exel was at all responsible for the OCHC’s termination of its contract with Daoust.
[196] Accordingly, the motion is dismissed.
[197] If the parties cannot agree on the issue of costs, then Daoust must submit its two-page costs submissions along with offers to settle and Bill of Costs on or before November 4, 2019 and Exel will file their two-page costs submissions along with any offers to settle and Bill of Costs on or before November 18, 2019. Daoust will file their one-page reply on or before November 25, 2019.
Justice A. Doyle
Date: October 22, 2019
COURT FILE NO.: 18-75220
DATE: 2019/10/ 22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Exel Contracting Inc., Plaintiff/Moving Party
AND
Jean Daoust Construction Inc., Defendants/Responding Parties
AND
Ottawa Housing Corporation/La Société de logement Ottawa, Defendants/Responding Parties
BEFORE: Justice A. Doyle
COUNSEL: Jonathan Collings, Counsel for the Plaintiff
Marie-Pier Dupont, Counsel for the Defendant Jean Daoust Construction Inc.
No one appearing on behalf of Ottawa Housing Corporation
Decision on summary judgement motion
Madam Justice A. Doyle
Released: October 22, 2019
[^1]: Construction Lien Act, R.S.O. 1990, c. C. 30. [^2]: Construction Lien Act, supra note 1. [^3]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [the “Rules”]. [^4]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49 [Hryniak]. [^5]: Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135. [^6]: Supra note 1. [^7]: Hryniak, supra note 3 at para. 60 [^8]: Ibid. [^9]: Transcript of Richard Goulet at Q 204 to 208. [^10]: Ibid at Q 184 to187. [^11]: Ibid at Q 196. [^12]: Ibid at Q 239 to 242. [^13]: Ibid at Q 425. [^14]: Ibid at Q 439 to 441. [^15]: Ibid at Q 21. [^16]: Ibid at Q 75 to 79. [^17]: Ibid at Q 80. [^18]: Ibid at Q 82, and Q 87 to 89. [^19]: Ibid at Q 185. [^20]: Ibid at Q 191. [^21]: Ibid at Q 196. [^22]: Ibid at Q 198. [^23]: Ibid at Q 229 to 230. [^24]: Ibid at Q 239 to 241. [^25]: Ibid at Q 242. [^26]: See Exhibit 2, tab 7, for LIB 18. [^27]: Ibid at Q 253. [^28]: Ibid at Q 254. [^29]: Ibid at Q 256 and Q 257. [^30]: Ibid at Q 263. [^31]: Ibid at Q 269. [^32]: Supra note 8 at Q 270. [^33]: Ibid at Q 273. [^34]: Ibid at Q 277. [^35]: Ibid at Q 279. [^36]: Ibid at Q 282. [^37]: Ibid at Q 284 to 286. [^38]: Ibid at Q 333. [^39]: Ibid at Q 338. [^40]: Ibid at Q 344 to 348. [^41]: Ibid at Q 351. [^42]: Ibid at Q 361. [^43]: Ibid at Q 366 to 369. [^44]: Ibid at Q 381. [^45]: Ibid at Q 386 [^46]: Ibid at Q387. [^47]: Ibid at Q 395. [^48]: Ibid at Q 404 to 405. [^49]: Supra note 8 at Q 415 to 416. [^50]: Ibid at Q 432. [^51]: Ibid at Q 435. [^52]: Ibid at Q 441. [^53]: Ibid at Q 452 and 454. [^54]: Affidavit of Jean Daoust dated February 4, 2019 at p. 2 exhibit 23. [^55]: Affidavit of Jean Daoust dated February 11, 2019 at para. 30. [^56]: Ibid at para. 31. [^57]: Ibid at para. 32. [^58]: Ibid at para. 35. [^59]: Transcript of the cross-examination of Krekeler dated April 18, 2019 at Q 66 to 68. [^60]: Ibid at Q 71. [^61]: Ibid at Q 75. [^62]: Ibid at Q 80 and 81 [^63]: Ibid at Q 102. [^64]: Ibid at Q 106 [^65]: Ibid at Q 205 to 207. [^66]: Ibid at Q 210. [^67]: Supra note 59 at Q 246. [^68]: Ibid at Q 254. [^69]: Ibid at Q 255. [^70]: Ibid at Q 284. [^71]: Ibid at Q 379. [^72]: Ibid at Q 381. [^73]: Hryniak, supra note 3 at para. 60. [^74]: Summa Engineering Limited v. Selectra Contracting Ltd. et al, 2017 ONSC 6380, 85 C.L.R. (4th) 252 [Summa first instance]. [^75]: Summa Engineering Limited v. Sona Construction Limited, 2018 ONSC 5733, 85 C.L.R. (4th) 262 (Div. Ct.). [^76]: Hamilton (City) v. Thier + Curran Architects Inc., 2015 ONCA 64, 45 C.L.R. (4th) 1 [Hamilton]. [^77]: Sound Solutions v. Cladit Siding Solutions Inc. et al, 2018 ONSC 4892, 2018 CarswellOnt 14600 [Sound Solutions]. [^78]: Summa first instance, supra note 75. [^79]: Sound Solutions, supra note 79 at para. 138. [^80]: Examination of Goulet dated April 1, 2019 at Q 184 to 187. [^81]: Supra note 81 at Q 204 to 208. [^82]: See Hamilton, supra note 78 at para. 19 which refers to Ese Sports Co. v. Continental Insurance Co. (1995), 1995 CanLII 19512 (ON CJ), 31 C.C.L.I. (2d) 184, 41 C.P.C. (3d) 59 at paras. 6-8. [^83]: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at para. 35. [^84]: Ibid at para. 37. [^85]: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561 [Butera]. [^86]: Ibid at para. 28-35. [^89a]: Butera, supra note 87 at paras. 30-35. [^87]: Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3. [^88]: Mason v. Perras Mongenais, 2018 ONCA 978, 2018 CarswellOnt 20502. [^89]: Ibid at para. 22. [^90]: Ibid at para. 23. [^91]: Vandenberg v. Wilken, 2019 ONCA 262, 1 R.P.R. (6th) 196. [^92]: Construction Lien Act, supra note 1.