Court File and Parties
COURT FILE NO.: CV-15-270 DATE: 2020-07-15 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
BAY CITY CONTRACTORS (THUNDER BAY) INC. C. Ryan Bodner, Buset LLP, for the Plaintiff (Defendant by Counterclaim), Moving Party Plaintiff
- and -
QUINAN CONSTRUCTION LIMITED Dan J. Leduc, Norton Rose Fulbright Canada LLP, for the Defendant (Plaintiff by Counterclaim), Responding Party Defendant
HEARD: February 3, 2020 Madam Justice B. R. Warkentin, R.S.J. Reasons on Summary Judgment Motion
[1] The plaintiff, Bay City Contractors (Thunder Bay) Inc. (“Bay City”), moved for partial summary judgment, claiming they are owed the sum of $200,338.56 for work completed on a construction project at the Kakabeka Falls Park, near Thunder Bay, Ontario.
[2] The defendant, Quinan Construction Limited, (“Quinan”) has counterclaimed against Bay City for failure to complete the project in accordance with the contract; alleging costs for delays, deficiencies and post-termination costs. Quinan argues that Bay City owes it $285,713.24 as a result of these contractual breaches.
[3] Bay City alleges that Quinan’s claim for a set-off and its counterclaim are spurious and advanced solely for the purpose of avoiding payment to Bay City.
[4] The work performed by Bay City under the contract, including extras, was not disputed in the hearing before me. Bay City claimed that $200,338.56 is owed to them for work completed on the project. This amount was calculated on the basis that Bay City completed $281,579.72 worth of work, for which Bay City was paid $81,241.16 (a $200,338.56 difference). Quinan’s assessment of the work completed by Bay City as set out in paragraph 18 of its factum and based upon the evidence described in paragraph 12 of Bay City’s factum, confirmed this calculation to be correct.
[5] At issue then, is whether or not there is a genuine issue for trial with respect to Quinan’s counterclaim for a set off for alleged delay, deficiencies and post-termination costs.
[6] For the reasons that follow I make the following orders:
a) Summary judgment is granted with respect to the work performed by Bay City on the project, with the balance owing to Bay City by Quinan of $200,338.56. This judgment is subject to any set off that may be found as a result of the counterclaim.
b) There is a genuine issue for trial with respect to Quinan’s counterclaim that cannot be decided on the basis of a summary judgment motion.
c) There shall be no advance payment on the summary judgment regarding Bay City’s claim until after the trial regarding Quinan’s counterclaim.
d) The issues of pre and post judgment interest and costs of the proceeding, (except with respect to this summary judgment motion) shall be determined by the trial judge.
Background
[7] In 2013, Bay City was retained as a subcontractor, for the general contractor, Quinan, for work on a project at Kakabeka Falls Park. The project involved demolition, paving and landscaping.
[8] Prior to the completion of the project, Quinan terminated Bay City and failed or refused to pay the outstanding invoices for the work Bay City had completed.
[9] In June 2015, Bay City commenced this litigation alleging a failure by Quinan to pay for work performed by Bay City. Quinan filed a defence and counterclaim shortly thereafter alleging there were deficiencies, and costs incurred by Quinan as a result of delays incurred.
[10] It does not appear that this litigation has progressed significantly since pleadings were completed. No affidavits of documents have been exchanged, no examinations for discovery have been conducted and no expert reports, to the extent they would be needed, have been exchanged.
[11] The main issue is a disagreement with respect to each party’s version about what happened at the project. Specifically, the parties disagree about the validity of the contract, Quinan’s contractual entitlement to charge for work performed in Bay City’s absence; and the quantum of the back charges, delay and other costs.
[12] Notwithstanding claims to the contrary, the evidence on this motion was that Bay City had accepted Quinan’s accounting with respect to the amounts owed to Bay City for the work performed, after deducting the payments made. Thus, the only issue is the validity of the counterclaim.
The Law of Summary Judgment Motions
[13] 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.”
[14] With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:
20.04 (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.
[15] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
[16] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions’ judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality considering the litigation as a whole.
[17] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, where he stated at paras. 33 and 34:
- As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(2) On the basis of this record, the court decides 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;
(3) 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 (2), above;
(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
- The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.
[18] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 111 O.A.C. 201 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).
Disposition
[19] For the reasons set out above, I find that there is no genuine issue requiring a trial with respect to Bay City’s claim.
[20] I find that granting summary judgment in favour of Bay City’s claim is a proportionate, expeditious and less expensive means to achieve a just result in this case. The plaintiff’s motion for summary judgment is accordingly granted in the amount of $200,338.56.
[21] I also find that there is a genuine issue for trial with respect to Quinan’s counterclaim that cannot be decided on the basis of this summary judgment motion. The amount that may be owed to Quinan as a result of its’ counter claim is in dispute and cannot be determined by me on the record that was provided in this motion. There have been no examinations for discovery and there are clear factual disputes that require a trial of this issue or at the very least, clarification of the conflicting evidence that was before me that might be obtained by the exchange of affidavits of documents and examinations for discovery.
[22] The counterclaim regarding Quinan’s entitlement to charge for work performed in Bay City’s absence; and the entitlement to and quantum of the back charges, delay and other costs shall proceed to trial.
[23] Because I have found that there is a genuine issue requiring a trial regarding Quinan’s counterclaim, there shall be no payment by Quinan to Bay City on the summary judgment in favour of Bay City until the counterclaim has been resolved at a trial or by other means.
[24] If there is an entitlement to pre or post judgment interest by either party, that issue shall be dealt with by the trial judge together with any costs of conducting this proceeding, except the costs of this motion.
[25] If the parties require assistance in setting a litigation timetable, they may make an appointment before me or any other judge of the Superior Court in Thunder Bay via zoom video conference to obtain an order for a litigation timetable. If counsel elect to appear before the court to obtain an order setting out a litigation table, they shall first exchange proposed timetables and if they are unable to agree, they shall provide the court with their respective recommendations as to a proposed schedule. If there are significant delays proposed by either party, they shall explain why such a delay is justified.
[26] Counsel are reminded to ensure they are complying with the current Notices to the Profession in the Northwest Region regarding the size and filing of material to be put before a judge.
Costs
[27] At the conclusion of the hearing, counsel provided me with their respective Bills of Costs, for my review upon reaching my decision.
[28] It is unnecessary for me to consider their costs outlines because I find that success on the summary judgment was divided and as such, each party shall bear their own costs of this motion. The costs of this summary judgment motion shall not be claimed by either party when seeking costs at trial or at any other proceeding in this action.
Madam Justice B. R. Warkentin, R.S.J. Released: July 15, 2020