Custom Home Interiors Inc. and Obvious Advantage Inc. v. Steve Corriveau, 2019 ONSC 601

Court File No.: 18-75956 Date: 2019/01/24 Superior Court of Justice - Ontario

Re: Custom Home Interiors By Obvious Advantage Inc., Plaintiff And Steve Corriveau, personally and c.o.b. as TEKPro AV, Defendant

Before: Justice R. Ryan Bell

Counsel: K.W. McKenzie, for the Plaintiff Jean-Francois Lalonde, for the Defendant

Heard: January 14, 2019

Endorsement

Overview

[1] In June 2016, Steve Corriveau and his sole proprietorship, TEKPro AV, entered into an agreement with "Custom Home Interiors By Obvious Advantage Inc." for the installation of a "video wall" in the student lounge of a newly built student residence. The video wall was to consist of four television screens in a two by two matrix that could project one combined picture or four different pictures. The plaintiff claims that the system "never worked" and alleges that Mr. Corriveau breached the contract and acted negligently in failing to rectify the problems with the system. The plaintiff claims $100,000 in general damages and punitive, aggravated and exemplary damages in the amount of $25,000.

[2] Mr. Corriveau disputes the plaintiff's allegations and maintains that he complied with the terms of the installation agreement. Mr. Corriveau counterclaims for $8,063.68, being the balance he claims he is owed by the plaintiff under the original quotation, together with $675 for "extras" associated with the installation.

[3] Mr. Corriveau moves for summary judgment dismissing the claim and for summary judgment on his counterclaim. For the following reasons, Mr. Corriveau's motion is granted. I dismiss the plaintiff's claim and grant summary judgment to Mr. Corriveau in the amount of $8,063.68.

Summary Judgment

[4] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." A judge hearing a motion for summary judgment has the power to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence (Rule 20.04(2.1)).

[5] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:

(i) allows the judge to make the necessary findings of fact;

(ii) allows the judge to apply the law to the facts; and

(iii) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49).

[6] As summarized by Corbett J. in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, on a motion for summary judgment, the court should undertake the following analysis:

(i) assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(ii) on the basis of this record, decide whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(iii) if the court cannot grant judgment on the motion, the court should (a) decide those issues that can be decided in accordance with the principles described in (ii); (b) identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; and (c) in the absence of compelling reasons to the contrary, seize itself of the further steps required to bring the matter to a conclusion (at para. 33).

[7] On a motion for summary judgment, the evidence need not be equivalent to that at trial; however, the evidence must be such that the judge is confident that she can fairly resolve the dispute (Hryniak, at para. 57). A documentary record, particularly when supplemented by the powers provided in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, is often sufficient to resolve material issues fairly and justly. Each side must "put its best foot forward" (Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12).

[8] The documentary record in this case is extensive. Mr. Corriveau swore two affidavits in support of his motion for summary judgment. Susan Charron, a law clerk employed by defendant's counsel, also swore an affidavit in support of the motion. Andrew Emmans, an officer of the plaintiff, swore an affidavit in response. Lengthy cross-examinations were conducted. Using the expanded fact-finding powers in Rule 20.04(2.1), I am confident that I can make the necessary findings of fact and apply the law to the facts so as to resolve the material issues fairly and justly.

First Preliminary Matter: Plaintiff's Motion to Remove Defendant's Counsel

[9] The plaintiff's responding motion record includes a notice of motion which seeks certain relief including "the return of the motion … to remove Mr. Lalonde [defendant's counsel] from the record." I declined to hear the plaintiff's motion to remove counsel on the basis that the motion was not properly before me. No notice of return of motion was served and the motion to remove counsel was not confirmed.

Second Preliminary Matter: Misnomer Motion

[10] Mr. Corriveau's notice of motion for summary judgment seeks an order under Rule 5.04(2) of the Rules of Civil Procedure "adding or substituting or correcting the name of the respondents." The plaintiff opposes the motion on two grounds: (i) the proposed amendment would amount to adding a new party, necessitating an adjournment; and (ii) there is no evidence to support the amendment.

[11] For the following reasons, I am satisfied that "Custom Homes Interiors by Obvious Advantage Inc." is a misnomer and that an order should go correcting the names of the plaintiffs/defendants by counterclaim to read "Custom Home Interiors Inc." and "Obvious Advantage Inc."

[12] It is the plaintiff that has incorrectly named itself in the action. Paragraph 2 of the statement claim states that "[t]he Plaintiff is a corporation carrying on business in Ontario." There was no evidence before me as to the corporate existence of the named corporate entity, "Custom Home Interiors By Obvious Advantage Inc."

[13] Corporation profile reports for Custom Home Interiors Inc. and Obvious Advantage Inc. were included in the record. Custom Home Interiors Inc. is an Ontario corporation. Its registered office address is 22 Antares Drive, Ottawa, and its mailing address is 22 Antares Drive, Unit L. It has three directors, Tyler Dren, Mr. Emmans, and Dylan MacNamara. Obvious Advantage Inc., a federal corporation, uses a P.O. Box in Ottawa as its registered office. Messrs. Dren, Emmans and MacNamara are the directors of Obvious Advantage Inc. Additional evidence filed on behalf of Mr. Corriveau at the hearing confirms that Custom Home Interiors Inc. is the owner of Unit L, 22 Antares Drive. Counsel for the plaintiff did not object to the late filing of this evidence but reserved his right to raise the issue in dealing with costs.

[14] It is no answer to suggest, as plaintiff's counsel does, that the error in naming the plaintiff was the result of Mr. Corriveau incorrectly naming the plaintiff in this case as the defendant in Small Claims Court proceedings for the recovery of the balance of the monies allegedly owed to him under the installation agreement.[^1]

[15] In his affidavit responding to this motion, Mr. Emmans swore, "I am an officer of the Plaintiff…" Based on the record before me, Mr. Emmans' statement is incorrect. He is an officer of Custom Home Interiors Inc. and Obvious Advantage Inc.

[16] I also note the following facts which, no doubt, led to the confusion. First, TEKPro's quotation names "Custom Home Interiors" as the client. The client's address is 22 Antares Drive, Unit L. Second, the deposit cheque is in the name of "Obvious Advantage Inc., 22 Antares Dr., Unit L". "Custom Home Interiors" also appears in the upper left corner of the cheque. Third, in the installation agreement, the client is "Custom Home Interiors by Obvious Advantage Inc., 22 Antares Drive unit L." Messrs. Dren and Emmans are described as representatives of "Custom Home Interiors." Fourth, "Custom Home Interiors by Obvious Advantage Inc.," "Custom Home Interiors," "Obvious Advantage Inc." all appear in the email correspondence sent by Messrs. Dren and Emmans.

[17] Based on these facts and the corporate registration information in the record, I conclude that the plaintiff named itself incorrectly in the title of proceedings. No prejudice would result from an order correcting the names of the plaintiffs (and defendants by counterclaim) to Custom Home Interiors Inc. and Obvious Advantage Inc. I will refer to the correctly named plaintiffs, collectively, as "CHI."

Factual Background

(i) The Installation Agreement

[18] On June 21, 2016, the parties entered into the agreement for the installation of the video wall system, in accordance with TEKPro's quotation dated April 18, 2016. The quotation specifies a price of $16,769.20. The installation agreement includes an entire agreement clause which incorporates the quotation. TEKPro was required to supply, install, set up and program, four television "commercial panels" on a video wall "2X2 pull out mount system." The quantities and descriptions of the components of the system are listed on the quotation.

[19] Paragraph 10 of the installation agreement provides that a fee of $75/hour "will be charged accordingly for any job, installation, service requested that is [sic] and has not been quoted to [CHI]. There is a 1 hour minimum charge for any job, installation, service regardless of any time less than 1 hour."

[20] Neither the quotation nor the installation agreement specifies a required completion date.

[21] In accordance with the installation agreement, CHI provided TEKPro with a 60 per cent deposit, being $10,061.52.

(ii) The Installation of the Video Wall

[22] The parties agree there were some delays associated with the installation of the video wall. The installation agreement was signed in late June 2016. I accept Mr. Corriveau's evidence that he advised CHI in June that he had a planned vacation in August 2016.

[23] Mr. Corriveau delivered the televisions to CHI in early July 2016. In late July, Mr. Corriveau advised Mr. Dren that there was a delay associated with the shipment of certain mounts/brackets purchased from a U.S. manufacturer.

[24] CHI was responsible for obtaining the cable boxes required for the installation and functionality of the video wall system. One scheduled site visit by Mr. Corriveau in late August had to be rescheduled because the cable boxes were not yet installed. Mr. Dren acknowledged that "we have no control over that aspect of the scheduling." I accept Mr. Corriveau's evidence, which is confirmed by the email exchange, that he was advised of the delay at the last minute. TEKPro's final invoice includes an extra charge of $600 (eight hours at an hourly rate of $75) associated with this occasion in late August 2016.

[25] On September 17, 2016, a Saturday, Mr. Corriveau was scheduled to attend the site to program the system. Unfortunately, when he arrived, no one on site was able to locate the key to the student lounge. TEKPro's final invoice includes an extra charge of $75 associated with the events of September 17, 2016.

[26] There was an issue regarding the speaker for the system. CHI says that Mr. Corriveau forgot to order a critical part and that it was an error in Mr. Corriveau's design. Mr. Corriveau's uncontroverted evidence is that the television manufacturer's specifications showed a built-in speaker. Mr. Corriveau's evidence is corroborated by the contemporaneous email exchange in which Mr. Corriveau, clearly frustrated with the development, advised Mr. Dren that the sales representative failed to mention that "speakers were optional." I accept Mr. Corriveau's evidence in this regard. In any event, based on the documentary record, I find that after he discovered the oversight, Mr. Corriveau acted promptly so as to minimize any delay.

[27] On October 2, 2016, Mr. Corriveau sent his final invoice and a "cheat sheet" on the operation of the system to Messrs. Dren and Emmans by email. Mr. Corriveau explained that he had modified the programming of the remote (to be uploaded on October 4) to address an issue raised by the client. A return site visit, with the client in attendance, was scheduled for October 4, 2016.

(iii) Events of October 4 and 5, 2016

[28] Only Mr. Emmans and Mr. Corriveau provided evidence as to what transpired at the October 4, 2016 site visit. Their evidence conflicts. Mr. Corriveau states that the remote control for the system needed "field testing" and some adjustments to address "user errors." His evidence is that it is very common to make such adjustments once he has a better appreciation for how the user is operating the system. Mr. Corriveau also provided a tutorial on the system. Mr. Corriveau's evidence is that Mr. Emmans signed off on the confirmation of work but when Mr. Emmans realized that the invoice included extra charges, he became agitated, scribbled over his signature, and then threw Mr. Corriveau's clipboard, with the invoice, to the ground, stating that he would never pay the invoice.

[29] Mr. Emmans' account is entirely different. According to Mr. Emmans, Mr. Corriveau arrived late for the meeting and then had to "completely" reinstall and reprogram the system, tasks that took "hours." Mr. Emmans' evidence is that Mr. Corriveau appeared to be able to make the system work while he was there but that "we soon discovered" it did not work as promised. Mr. Emmans states that it was Mr. Corriveau who became angry when Mr. Emmans did not want to sign the final invoice.

[30] On October 5, 2016, Mr. Emmans sent Mr. Corriveau a lengthy email. Mr. Corriveau relies on the first paragraph of the email which states:

In follow up to today, I am reaching out as a recap. I must say, I am very impressed with how the system works now, and can say, that so is the customer, assuming we do not run into anymore of the "glitches" or "errors" you ran into in the meeting today. It is great that the system is working and it is very user friendly, so good on you for that. I am hopeful that it will stay that way. I was not however, happy at all with what transpired during the meeting we had today with Angelo and afterwards with just you and I.

[31] Mr. Emmans went on to describe Mr. Corriveau as "the epitome of a bad customer service provider" and to characterize the "extras" as a "slithery move." Mr. Corriveau was put on notice that before he would be paid the balance owed under the installation agreement, CHI would require the final working version of the program, an amended invoice "to be based on the amount we agreed to and not a penny more," and a "full run down" of the warranty on the work. Mr. Emmans added, "if something goes wrong with the system due to it not working properly, or if you do anything to sabotage the work that was done, it will be your responsibility to fix it at your cost, and the work will not be considered complete until then. I would strongly advise against challenging this."

Analysis

(i) The Allegations in the Statement of Claim

[32] CHI alleges in the statement of claim that the parties entered into an agreement which included a recognition by Corriveau and TEKPro that the "timing [of the contract's completion] was critical." The parties did no such thing. No completion date for the installation was set out in either the installation agreement or the quotation. The installation agreement includes an entire agreement clause.

[33] Mr. Corriveau did not forget to order the speaker. He acted promptly once the manufacturer's oversight was discovered. The delays associated with the cable boxes and the shipment of the brackets cannot be visited on Mr. Corriveau. I find that there is no genuine issue requiring a trial with respect to CHI's allegation that Mr. Corriveau and TekPro AV failed to complete the contracted work on a timely basis.

[34] There is no evidence in support of CHI's allegation that Mr. Corriveau "procured or used old, dated, or obsolete equipment."

[35] I turn to the central issue in this case.

(ii) Did the Video System Work?

[36] Mr. Corriveau's position is that the video wall system worked on October 4, 2016 and that CHI has failed to put forward evidence to the contrary.

[37] CHI's position is that the motion for summary judgment should be dismissed "so that this action can go to trial [where] [i]t intends to prove that the AV System does not work and that [sic] has damaged its reputation." CHI identifies five people who, it claims, have provided evidence that the video wall system does not work: Mr. Dren, "Jon from Stereo Plus," Russell King, Ms. Charron, and Mr. Emmans.

[38] For the following reasons, I place no weight on the contents of Mr. Dren's email of October 27, 2016 addressed to "jon@sigav.com" that purports to list various problems experienced by the "client" after October 4, 2016. Mr. Dren's email is attached to Mr. Emmans' affidavit as an exhibit. Mr. Dren is a director of both plaintiffs; however, he did not provide an affidavit in this matter. The unidentified client referred to in Mr. Dren's email did not provide an affidavit. An affidavit for use on a motion may contain statements of the deponent's information and belief provided that the source of the information and the fact of the belief are specified in the affidavit (Rule 39.01(4) of the Rules of Civil Procedure). Mr. Emmans' affidavit fails to comply with these requirements.

[39] "Jon from Stereo Plus" is not identified further in Mr. Emmans' affidavit. There is some evidence that Stereo Plus has ceased to carry on business. An email from Mr. Dren that purports to report on a service call he observed involving "Jon from Stereo Plus" is attached to Mr. Emmans' affidavit as an exhibit. "Jon from Stereo Plus" did not provide an affidavit in this matter. Mr. Emmans' affidavit does not comply with Rule 39.01(4). Mr. Dren's email was sent nine months after the final site visit on October 4, 2016. The time for putting forward this witness' evidence, in a proper fashion, was on the summary judgment motion. CHI has failed to put its "best foot forward." In determining whether the video wall system worked, I have placed no weight on Mr. Dren's observations in his June 23, 2017 email.

[40] In its factum, CHI states that "Russell King is a person who has been identified who says [the video wall system] does not work." Mr. Emmans states in his affidavit, "I attended recently at l"Envie [the residence] and my attendance was videoed so that it can be shown what the current status of the AV Unit is and it does now [sic] work the way it was supposed to as a large television screen." Mr. Emmans does not attach the SD card containing the video to his affidavit. He does not refer to Mr. King in his affidavit. The date the video was made is not specified. The SD card was only provided to counsel for Mr. Corriveau mid-way through Mr. Corriveau's cross-examination notwithstanding repeated requests by Mr. Corriveau's counsel for CHI's affidavit of documents. While I permitted counsel for CHI to play certain of the videos on the SD card at the hearing of the motion, in view of the serious deficiencies I have identified, I have concluded that these videos are not properly before the court. I have not considered them in determining whether the video wall system worked.

[41] CHI relies on Ms. Charron's evidence that "she saw that the person she was with, Mr. Murphy, was not able to get the Video Wall to work." CHI submits that Ms. Charron's statements as to why the system did not work are inadmissible hearsay. Ms. Charron made her observations in March 2018, approximately one and a half years after the October 4, 2016 final site visit by Mr. Corriveau. Leaving aside the hearsay nature of some of her evidence, her observations are of no relevance to the operation of the system in October 2016.

[42] I am left with the evidence of Mr. Emmans and Mr. Corriveau. Counsel for CHI submits that the credibility issue should be left to the trial judge. I disagree. Both Mr. Emmans and Mr. Corriveau were cross-examined at length on their affidavits. I am able to weigh the evidence, evaluate the credibility of the deponents and draw reasonable inferences from the evidence in the record. For the following reasons, I prefer the evidence of Mr. Corriveau to that of Mr. Emmans.

[43] I find that Mr. Emmans was not always forthright in his affidavit. For example, Mr. Emmans states that, "Mr. Corriveau attended to begin installation on August 6th, 2016 and thereafter we had to wait for Rogers Cable Boxes to be installed so he could return and finish connecting them." Mr. Emmans ought to have made it clear that Mr. Corriveau was not responsible for the installation of the cable boxes. Another example is the following statement: "Mr. Corriveau then wanted to attend on a Saturday which is not a day when staff were on site so that did not work out when a key could not be located." Mr. Emmans does not disclose that Mr. Dren cleared Mr. Corriveau's planned Saturday visit with the builder and specifically advised Mr. Corriveau to check in at the front desk.

[44] Second, Mr. Emmans' repeated statements on cross-examination that the system "has never worked" are belied by his own words in his October 5, 2016 email. In the opening paragraph of his email Mr. Emmans stated that he was "very impressed with how the system works now … so is the customer …", "[i]t is great that the system is working and it is very user friendly … I am hopeful it will stay that way." Attached to the same exhibit is a note from "Angelo," the client, to Mr. Dren, in which the client states "[t]he video wall works well and very easy to use [sic]."

[45] Third, Mr. Corriveau's evidence is, in large measure, corroborated by the documentary evidence, including Mr. Emmans' email of October 5, 2016 and the final invoice. The final invoice shows at least a portion of Mr. Emmans' signature and the date of October 4, 2016. Both have been scribbled over. That Mr. Emmans was upset by the $675 in extra charges – "your slithery move" – is evident from the language he uses in the email. To even raise the possibility that Mr. Corriveau might consider sabotaging the system defies comprehension.

[46] CHI's submission – "[i]t remains a mystery, why … Mr. Corriveau has refused to attend at l'Envie" – is disingenuous. Mr. Corriveau was told he would never be paid. Mr. Emmans labelled Mr. Corriveau "the epitome of a bad customer service provider." There was a suggestion that he might choose to sabotage the system. He was threatened with trespass in no uncertain terms: "[u]ntil that [corrective] plan has been approved in writing you and anyone in your employ are forbidden to trespass on the property." There is no mystery why Mr. Corriveau never returned.

[47] I find that the video wall system was working as intended on October 4, 2016. On the evidence before me, I am unable to make any findings as to specific issues that may have developed subsequent to that date or to connect any such issues to the work done by Mr. Corriveau. I therefore dismiss the claim against Mr. Corriveau and TEKPro.

(iii) The Counterclaim

[48] On the record before me, I am persuaded that Mr. Corriveau performed as required under the terms of the installation agreement. He is entitled to be paid the balance owed under the original quotation.

[49] I am also satisfied that Mr. Corriveau is entitled to be paid the $675 in extra charges pursuant to paragraph 10 of the installation agreement. The site visits were pre-arranged with CHI. Under the contract, CHI was responsible for providing site access to TEKPro.

[50] Accordingly, Mr. Corriveau is entitled to judgment on his counterclaim in the amount of $8,063.68.

Disposition

[51] The claim of Custom Home Interiors Inc. and Obvious Advantage Inc. against Mr. Corriveau is dismissed. Summary judgment is granted in favour of Mr. Corriveau against Custom Home Interiors Inc. and Obvious Advantage Inc. in the amount of $8,063.68. Prejudgment and post-judgment interest are payable in accordance with the Courts of Justice Act.

[52] If the parties are unable to agree on costs of the motion and the action, they may make written submissions limited to a maximum of five pages, double-spaced, in addition to any offers to settle and draft bills of costs. Mr. Corriveau shall deliver his costs submissions by February 7, 2019. CHI shall deliver their responding costs submissions by February 21, 2019. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell Date: January 24, 2019

2019 ONSC 601

Court File No.: 18-75956 Date: 2019/01/24

Ontario Superior Court of Justice

Re: Custom Home Interiors By Obvious Advantage Inc., Plaintiff And Steve Corriveau, personally and c.o.b. as TEKPro AV, Defendant

Before: Ryan Bell J.

Counsel: K.W. McKenzie, for the Plaintiff Jean-Francois Lalonde, for the Defendant

Endorsement Ryan Bell J.

Released: January 24, 2019

[^1]: Small Claims Court action 17-SC-144225 has been stayed pending further court order (order of Deputy Judge Lepsoe dated May 26, 2017).