COURT FILE NO.: CV-16-554361

DATE: 2020 01 03

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended

RE: PBW HIGH VOLTAGE LTD., Plaintiff

- and -

METROLINX and DEPENDABLE MECHANICAL SYSTEMS INC., Defendants

BEFORE: Master Todd Robinson

COUNSEL: G. Hemsworth, for the plaintiff

B. Kuchar, for the defendant, Dependable Mechanical Systems Inc.

HEARD: October 4, 2019

REASONS FOR DECISION

[1] PBW High Voltage Ltd. (“PBW”) moves for summary judgment on its lien claim against Dependable Mechanical Systems Inc. (“DMS”). DMS opposes PBW’s motion and has brought a cross-motion to withdraw an admission made at the first hearing for directions in this reference and to amend its statement of defence to plead set-off for any proven deficiencies in PBW’s scope as alleged against DMS by the general contractor for the subject project, Four Seasons Site Development Ltd. (“Four Seasons”).

[2] This action arises from PBW’s sub-subcontract work for DMS in the construction of a new train maintenance facility known as the Mimico Train Layover, situated across from the Willowbrook Rail Maintenance Facility in Toronto. Four Seasons was contracted by Metrolinx as the general contractor for the project, which involved extensive electrical and mechanical work that Four Seasons subcontracted to DMS. DMS sub-subcontracted a portion of its work to PBW.

[3] DMS’ subcontract was ultimately terminated by Four Seasons. Various sub-subcontractors to DMS, including PBW, preserved and perfected liens against the project premises. PBW claimed $545,247.21 as the unpaid value of services and materials supplied, representing the unpaid balance of invoices rendered on DMS. DMS also preserved and perfected its own lien in the amount of $2,299,736.39, which subsumed PBW’s lien.

[4] DMS concedes timeliness and lienability of PBW’s lien. The sole disputed issues are the quantum of PBW’s lien and the impact of term relied upon by DMS as an agreed “pay-when-paid” arrangement. The latter is DMS’ primary defence to non-payment. DMS now also seeks to withdraw a prior admission that the quantum of PBW’s lien is not in dispute and to amend its statement of defence to allege set-offs for a portion of the deficient work alleged by Four Seasons against DMS, for which DMS alleges that PBW would be ultimately responsible if proven by Four Seasons.

[5] For the reasons that follow, I have determined that leave should be granted for DMS to withdraw its prior admission and to amend its statement of defence, but that partial summary judgment on PBW’s claim is nevertheless granted against DMS. A genuine issue requiring a trial still remains regarding agreement to, enforceability of and impact of the “pay-when-paid” term relied upon by DMS, for which a one-day trial of an issue is appropriate.

Reference History

[6] This lien action by PBW is now the lead reference file in this reference proceeding pursuant to the now-former Construction Lien Act (the provisions of which remain applicable to the proceeding by operation of Section 87.3 of the current Construction Act, hence references in this decision are to the now-former Construction Lien Act). The former lead reference file was DMS’ lien action in CV-16-556541, which was referred to a master for determination by a judgment of reference made pursuant to the Construction Lien Act. PBW’s lien action was subsumed into that reference by operation of the provisions of the Construction Lien Act.

[7] Subsequent to hearing argument on the motions and reserving this decision, DMS and Four Seasons reached a settlement pursuant to which the action in CV-16-556541 was dismissed, as well as DMS’ third party claim against Four Seasons for contribution and indemnity to PBW’s claim in CV-16-554361-A1. PBW’s action in CV-16-554361 is the only outstanding action within the reference, so the reference has been continued with it as the new lead reference file.

[8] Procedural history in this action and the reference has some bearing on disposition of the motions. The following are certain relevant procedural steps:

(a) PBW’s lien action was commenced by statement of claim issued June 8, 2016. DMS’ statement of defence was delivered on July 18, 2016, shortly after DMS commenced its own lien action in CV-16-556541 on July 12, 2016.

(b) On August 8, 2016, Four Seasons defended DMS’ lien action in CV-16-556541 and counterclaimed against DMS for alleged breaches of contract and breaches of DMS’ duty of good faith in respect of the subject project and other projects.

(c) By order of Master Albert dated August 10, 2016, DMS was granted leave to issue a third party claim against Four Seasons. DMS thereafter issued the third party claim in CV-16-554361-A1, seeking contribution and indemnity from Four Seasons to PBW’s claim. Four Seasons defended the third party claim on June 1, 2017, claiming set-offs and asserting that no funds are owing to DMS by Four Seasons.

(d) On April 18, 2017, prior to Four Seasons serving its third party defence, this reference came before now-retired Master Albert for a first hearing for directions following the judgment of reference and an order for trial in CV-16-556541. At that hearing, DMS admitted that the quantum and timeliness of PBW’s lien was not in dispute. Master Albert made an order confirming DMS’ position that quantum and timeliness were not in dispute and excused PBW from attending further hearings for directions.

(e) On October 2, 2017, at the second hearing for directions, Master Albert confirmed the agreement of Four Seasons, DMS, PBW and other lien claimants to the pro rata distribution of holdback, which resulted in payment to PBW of $120,197.22 on account of its lien claim. In Trial Directions #2, Master Albert noted, “Quantum and timeliness of the subcontractor lien claims is not in dispute.”

(f) In or around October 2017, Four Seasons served its responding Scott Schedule as defendant and its own Scott Schedule as plaintiff by counterclaim in CV-16-556541. These Scott Schedules provided further particulars of Four Seasons’ allegations regarding DMS’ incomplete and deficient work.

(g) On October 1, 2018, at the fourth hearing for directions, DMS challenged the quantum of the liens of its subcontractors, including PBW, on the basis that deductions may be required for deficiencies alleged by Four Seasons. In Trial Directions #4, Master Albert directed that, since DMS had not pleaded any deficiencies against its subcontractors, DMS would need to seek an order granting leave to withdraw the admission as to quantum before DMS could amend its statement of defence to allege set-offs for deficiencies. Master Albert further granted leave for DMS’ subcontractors (including PBW) to bring summary judgment motions on the quantum owing in contract and on their lien claims.

Analysis

Withdrawal of Admission

[9] Rule 51.05 of the Rules of Civil Procedure, RRO 1990, Reg 194 provides that an admission may be withdrawn on consent or with leave of the court. DMS’ proposed amendments require withdrawal of its prior admission that the quantum of PBW’s lien is not disputed. DMS accordingly bears the onus of establishing that the amendments give rise to a triable issue, that the original admission was inadvertent or resulted from wrong instructions, and that withdrawal of the admission will not result in any non-compensable prejudice: Phillips v. Disney, 2018 ONSC 1021 at paras. 13-16. In meeting the requirement to demonstrate a “triable issue”, DMS must show that the proposed amendments are meritorious, rather than a tactical move that hinders, delays or frustrates the course of justice: Phillips v. Disney, supra at paras. 25-26.

[10] I am satisfied that DMS has met its onus for the following reasons:

(a) While DMS denies there was incomplete work or deficiencies in its work (and the work of its subcontractors), DMS has identified several items in Four Seasons’ Scott Schedules that DMS says, if proven, are within PBW’s scope of work. I am satisfied that DMS’ position is not a tactical move intended to hinder, delay or frustrate the process and that there is sufficient merit to DMS’ position to support a prima prima facie triable issue regarding PBW’s responsibility for the identified deficiencies alleged by Four Seasons. In my view, a prima facie triable issue is all that is required by the case law, consistent with the similar factor to be considered in any amendment motion (discussed below).

(b) DMS’ admission regarding the quantum of PBW’s lien was made prior to receipt of Four Seasons’ Scott Schedule and, accordingly, prior to having received detailed particulars of Four Seasons’ allegations of deficiencies. There is nothing before me to suggest that, prior to receipt of the Scott Schedules, DMS had any reasonable basis to believe that there were alleged deficiencies within PBW’s scope of subcontract work. In my view, DMS’ admission prior to having received Scott Schedules from Four Seasons is properly characterized as inadvertence.

(c) PBW has tendered no evidence of prejudice from withdrawal of DMS’ admission or the proposed amendments. In my view, the only prejudice from allowing withdrawal of the admission is additional costs in responding to the deficiency allegations. This is compensable prejudice.

[11] I accordingly grant leave to DMS to withdraw the prior admission made at the first hearing for directions, namely that the quantum of PBW’s lien is not in dispute.

Amendment of DMS’ Statement of Defence

[12] I agree with DMS’ submission that where a summary judgment motion by a plaintiff and an amendment motion by a defendant are brought concurrently, and the proposed amendments are relevant to the motion for summary judgment, it is appropriate to decide the amendment motion first: Johnson v. Canada Motor Car Inc., 2017 ONSC 7772 at paras. 20-21.

[13] Absent consent of the plaintiff, leave of the court is required to amend a pleading after the close of pleadings. Rule 26.01 of the Rules of Civil Procedure provides that the court shall grant such leave unless it would result in non-compensable prejudice. Factors to be considered in granting leave to amend include if there is injustice that is not compensable in costs, if the proposed amendment is an issue worthy of trial and prima facie meritorious, if the amendment would not be struck had it been pleaded originally, and if there are sufficient particulars: Marks v. Ottawa (City), 2011 ONCA 248 at para. 19. In considering the meritorious factor on an amendment motion, the court is restricted to looking only at the pleading and should not consider the merits of the factual basis for the proposed amendment: Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404 at para. 36.

[14] DMS’ proposed amendments add allegations that, to the extent that Four Seasons has claimed deficiencies that include work done by PBW and those deficiencies are found to be valid by the court, PBW is liable to DMS for the cost of such deficiencies. DMS seeks to add a set-off for any deficiencies and/or delay claims that are found attributable to PBW’s work.

[15] I am satisfied that the proposed amendments raise prima facie meritorious issues for trial, that there are sufficient particulars for the purpose of pleading, and that there is no non-compensable prejudice to PBW arising from granting leave for the proposed amendments. Leave is accordingly granted for DMS to amend its statement of defence in the form of the amended amended statement of defence attached at Schedule A to DMS’ notice of cross-motion.

Summary Judgment

[16] Having granted leave for DMS’ proposed amendments, I now assess PBW’s summary judgment motion on the amended statement of defence, consistent with the approach taken in Johnson v. Canada Motor Car Inc. During oral submissions, DMS agreed that the court could do so if the amendment motion was granted.

[17] PBW moves for summary judgment on its lien claim, arguing that there are no genuine issues requiring a trial. DMS concedes timeliness and lienability of PBW’s lien, and does not dispute the amount claimed by PBW, subject to the newly pleaded amendments regarding deficiencies and reliance on the “pay-when-paid” term.

[18] In deciding a summary judgment motion, the relevant analysis to be undertaken by the court has been set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 at para. 66. It is, in effect, a two-part assessment. The court should first determine if there is a genuine issue requiring trial based only on the evidence in the record, without using the fact-finding powers provided in Rules 20.04(2.1) and (2.2). If the evidence required to fairly and justly adjudicate the dispute is available and summary judgment is a timely, affordable and proportionate procedure, then summary judgment may be granted under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the discretionary powers under Rules 20.04(2.1) and (2.2), which may be used provided it is not against the interest of justice to do so. Use of the powers will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[19] The comments of the Supreme Court of Canada in Hryniak at para. 49 are also instructive:

[49] 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 (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[20] I have applied the principles from Hryniak in my disposition of PBW’s summary judgment motion.

[21] As a preliminary matter, DMS argues that PBW’s summary judgment motion must fail if DMS’ amendment motion is granted, since a determination that DMS’ proposed amendments raise a prima facie meritorious and triable issue is equivalent to a conclusion that there is a genuine issue for trial. I reject that argument. In my view, the analysis of whether a pleading raises a triable issue is distinct from the analysis for whether a triable issue is a genuine issue that requires a trial for its fair and just adjudication.

[22] On an amendment motion, the court is concerned with the prima facie merits of a pleaded position, not whether there will be sufficient evidence to ultimately support it. As noted above, in Fram Elgin Mills 90 Inc., the Court of Appeal has held that the court is restricted to looking only at the pleading and not the merits of the factual basis for a proposed amendment when assessing if that proposed amendment is meritorious. Conversely, on a summary judgment motion, the court is concerned with the evidence supporting the positions taken by the parties and whether a trial is needed to fairly and justly adjudicate the disputes. It is now trite law that both plaintiffs and defendants have an evidentiary obligation to put their “best foot forward” on a summary judgment motion: Combined Air Mechanical Services Inc. v. Flesch, 2011 SCC ONCA 764 at para. 56.

[23] In my view, DMS’ argument amounts to importing the evidentiary considerations and onuses of a summary judgment motion into a pleadings amendment motion, which would make such motions unnecessarily and unfairly onerous. It is also inconsistent with the approach to amendment motions taken in prior case law. Accordingly, my determination that DMS’ proposed amendments give rise to prima facie meritorious and triable issue does not itself mean there is a genuine issue requiring a trial. The evidence in the record must be closely reviewed before that determination is reached.

[24] Given the concessions by DMS regarding timeliness and lienability of PBW’s lien, the only issues remaining in dispute for consideration on PBW’s motion are the quantum of PBW’s lien (and related contract claim), whether or not the “pay-when-paid” terms was agreed and is enforceable, and whether or not payment is due.

[25] In addressing the quantum of PBW’s lien, DMS concedes the validity of the amounts claimed by PBW, subject to potentially proven deficiencies in PBW’s scope of work as alleged by Four Seasons. As pleaded in the statement of claim, PBW’s total subcontract price was $1,864,500 and, at the time of DMS’ termination by Four Seasons, PBW had completed and invoiced work totalling $1,290,586.71. DMS does not dispute PBW’s position on the work completed and invoiced, or that the unpaid amount was $545,247.21. That leaves $573,913.29 in incomplete work within PBW’s scope of subcontract work at the time of DMS’ termination. After accounting for holdback distribution, the balance of PBW’s lien and contract claim is $425,049.99.

[26] DMS’ affidavit evidence does not specifically identify any Scott Schedule items where disputes raised by Four Seasons arguably relate to PBW’s scope of work. PBW has tendered evidence confirming that only two items in Four Seasons’ Scott Schedule as plaintiff by counterclaim (namely item nos. 10 and 13) could relate to PBW’s subcontract scope. PBW’s position on those items is addressed below.

[27] DMS’ counsel argues that three disputes raised by Four Seasons in the two Scott Schedules in CV-16-556541 fall within PBW’s scope of work, namely the following:

(a) Item no. 10 in Four Seasons’ Scott Schedule at Tab 2K of DMS’ cross-motion record and responding motion record, which is a claim by Four Seasons for reforming and pouring cabinet pads allegedly damaged by PBW. Four Seasons claims a set-off of $18,519.20, apparently correlating to a contemplated change order for $18,519.60 issued by Four Seasons to DMS on September 10, 2015. DMS’ Scott Schedule position is that PBW did damage the pads, but that agreement was reached between Four Seasons and PBW to value the damage at $11,000, which amount was to be paid by PBW.

(b) Item no. 13 in Four Seasons’ Scott Schedule at Tab 2K of DMS’ cross-motion record and responding motion record, which is a claim by Four Seasons for testing and commissioning completed at a cost of $185,704.74. DMS acknowledges that the item relates to all testing and commissioning of DMS’ work, so is not only for testing and commissioning of PBW’s scope. However, DMS submits that the portion pertaining to PBW is not yet known.

(c) Item no. 9 in DMS’ Scott Schedule at Tab 1 of DMS’ supplementary motion record, which deals with DMS’ claim for $387,127.01 for unpaid electrical work. DMS’ position is that DMS and its subcontractors, including PBW, completed 99% of the subject work, whereas Four Seasons’ position is that the work is only 86% complete. If Four Seasons’ position is proven, then portions of incomplete work may be attributable to PBW.

[28] As noted above, PBW’s evidence identifies and addresses item nos. 10 and 13 from Four Seasons’ Scott Schedule. Although relied upon by DMS in argument, DMS’ Scott Schedule was not put into evidence until DMS’ supplementary motion record, which was served after completion of cross-examination on affidavits.

[29] I agree with PBW’s submission that DMS had an onus to tender evidence supporting a genuine issue requiring a trial regarding deficiencies alleged to be within PBW’s scope of work. Although DMS denies Four Seasons’ allegations, it was nevertheless incumbent on DMS to tender the evidence from Four Seasons supporting its position to the extent such evidence is relevant to PBW’s supply of services and materials.

[30] The only “evidence” relied upon by DMS to support Four Seasons’ allegations of deficiencies is the two Scott Schedules exchanged between DMS and Four Seasons in CV-16-556541. Scott Schedules are commonly used in construction lien cases to identify work performed by a contractor that is disputed by the contracting party. They provide detailed particulars of allegations advanced in pleadings to assist the parties in the course of litigation and, if relied upon at trial, to assist the court. They are not evidence in and of themselves.

[31] DMS argues that there is not yet a full record from Four Seasons on the relevant allegations of deficiencies. DMS’ position is that it “has no idea what portion of the amounts being claimed by Four Seasons may be attributable to deficiencies in the work of PBW.” DMS thereby submits that proving and quantifying the deficiencies alleged by Four Seasons is a genuine issue requiring a trial that will bear directly on the quantum of PBW’s lien.

[32] I do not accept DMS’ position. It is undisputed that documentary production between DMS and Four Seasons has been completed and that DMS has completed all examinations for discovery of Four Seasons for which leave was granted, subject to answers to undertakings and refusals. DMS has accordingly had the opportunity to review Four Seasons’ documentary productions and examine on the alleged deficiencies relevant to PBW’s scope of work. Nevertheless, no documents supporting the existence or extent of the alleged deficiencies has been tendered into evidence on this motion. Similarly, no evidence from the discoveries has been tendered regarding particulars of the relevant deficiencies. There is also no evidence of any outstanding undertakings or refusals that bear on the extent to which Four Seasons’ allegations relate to PBW’s lien quantum. In my view, having completed documentary and oral discovery of Four Seasons, DMS ought reasonably to be in a position to provide particulars and supporting documentary evidence for Four Seasons’ positions on the alleged deficiencies and evidence on why those positions bear on PBW’s claim. It has not done so.

[33] I also accept PBW’s argument that, subject to the concession by PBW regarding item no. 10 in Four Seasons’ Scott Schedule, DMS has failed to establish that Four Seasons’ allegations of deficiencies are within the scope of work that PBW claims it has completed and invoiced. In particular:

(a) Regarding item no. 13 in Four Seasons’ Scott Schedule, PBW’s evidence is that testing and commissioning has nothing to do with PBW’s scope of work and that PBW had no testing equipment on site at any time. That denial is a bald statement in the affidavit of Michael Penny, and was challenged by DMS on cross-examination. However, even if PBW’s scope did include some testing, none of the evidence tendered supports that the testing and commissioning completed by Four Seasons relates to equipment installed or work performed by PBW for DMS. I was directed to nothing in the invoices at Exhibit D to Mr. Penny’s cross-examination, which quantify Four Seasons’ claim, that is work within PBW’s completed subcontract scope.

(b) Regarding item no. 9 in DMS’ Scott Schedule, no evidence has been filed regarding what work comprises the 13% discrepancy between the positions of DMS and Four Seasons on completion of the disputed electrical work, or that such work was within PBW’s completed subcontract scope.

[34] Regarding item no. 10, PBW’s evidence denies any responsibility for damage to concrete pads, but acknowledges the agreement to a credit of $11,000 to Four Seasons from any settlement payout of PBW’s lien. PBW concedes that DMS is entitled to a $11,000 credit. DMS argues that Four Seasons’ claim is for $18,519 as reflected in the Scott Schedule and contemplated change order. However, there is no evidence that Four Seasons’ position represents a cost actually incurred. DMS’ position in the Scott Schedule is that $11,000 was the agreed credit.

[35] Considering the obligation on DMS to put its “best foot forward” and the absence of DMS having tendered any evidence obtained from Four Seasons to support that there may be arguable deficiencies within PBW’s scope of work, I find there is no genuine issue requiring a trial regarding those items. Given PBW’s concession, though, I find that DMS is entitled to a credit in the amount of $11,000 for the deficiency identified in item #10 of Four Seasons’ Scott Schedule.

[36] Dealing with the “pay-when-paid” defence, DMS relies on the following term included in DMS’ purchase order terms and conditions as provided to PBW on April 1, 2015:

10. All payments will be back to back ie. You will be paid when we get paid.

[37] DMS’ position is that this term was agreed and in effect, that DMS itself has a significant lien claim for unpaid amounts, and that there is no evidence before the court that DMS has been paid. DMS accordingly argues that, regardless of the deficiencies, there is nevertheless a genuine issue requiring a trial regarding its obligation to pay PBW.

[38] PBW disputes DMS’ position that the term was agreed. PBW points to its fax correspondence dated April 2, 2015, which provided a signed copy of the terms and conditions with a handwritten notation beside the “pay-when-paid” term stating, “*please see attached conditions in PBW letter dated April 2, 2015.” PBW further points to its own terms and conditions appended to the letter, previously appended to its initial quotation, which states the following:

2. […] PBW will not accept any “pay when paid” contracts or purchase orders. […]

[39] PBW argues that evidence is clear that PBW accepted the purchase order on condition that DMS’ “pay-when-paid” term was refused and, since the April 2, 2015 letter was never challenged, the operative contract document is thereby PBW’s original quotation including the above term. PBW further points to the cross-examination of Rajesh Ahuja for confirmation that DMS did not respond to PBW’s letter dated April 2, 2015 as support for PBW’s position that its agreement to perform work was on the basis that there would be no pay-when-paid arrangement.

[40] I do not agree with PBW that the evidence is clear that there was no agreement to a pay-when-paid arrangement. The same April 2, 2015 letter states the following:

Please also note with respect to clause 10 under your terms and conditions that PBW will only accept the paid when paid clause under the following conditions:

• If DMS agrees to pay PBW within 5 days of receiving payment from the owner and

• If DMS agrees to pay PBW all funds owing notwithstanding any disputes between the owner and the contractor.

[41] Affidavit evidence from both parties on the issue of agreement to the “pay-when-paid” term is brief. In my view, on the record before me, agreement to and enforceability of the “pay-when-paid” term is a genuine issue requiring a trial, and it cannot be fairly or justly resolved by use of the fact finding powers in Rules 20.04(2.1) and (2.2). The parties’ evidence on the back-and-forth of correspondence between PBW and DMS regarding PBW’s quotation and the terms of PBW’s supply of services and materials is significant in assessing agreement to and enforceability of the “pay-when-paid” term, but is not adequately addressed in the affidavits before me on this motion. Additional evidence is necessary to reach a proper determination on that issue, which also raises an issue regarding impact of the “pay-when-paid” term on payment to PBW. In my view, evidence on those issues is more fairly and justly tendered at a trial.

[42] Since I have determined that a fair and just determination cannot be reached without a trial by using the fact-finding powers, I need not consider the submissions of the parties on the impact of the decision regarding the inability of a construction lien reference master to exercise those powers in R & V Construction v. Baradaran, 2019 ONSC 1551, from which an appeal has been brought and argued, but the decision remains under reserve.

[43] I accordingly find that there is no genuine issue requiring a trial regarding the amounts claimed by PBW in contract and on account of its lien, which I find to be valid in the amount of $414,049.99 ($425,049.99 less $11,000), plus pre-judgment interest. However, I find that there is a genuine issue requiring a trial regarding agreement to and enforceability of the “pay-when-paid” term relied upon by DMS, as well as the impact of that term on payment of the amounts that would otherwise be owing to PBW.

Orders

[44] For the foregoing reasons, DMS’ motion to withdraw an admission and amend its statement of defence is granted and PBW’s motion for summary judgment is granted, in part. I accordingly order as follows:

(a) Leave is granted for DMS to withdraw its prior admission that the quantum of PBW’s lien is not disputed.

(b) Leave is granted for DMS to amend its statement of claim in accordance with the draft amended amended statement of defence at Schedule A to DMS’ notice of cross-motion.

(c) Partial summary judgment is granted in favour of PBW against DMS declaring that PBW’s lien was preserved and perfected in time and declaring that the quantum of PBW’s lien and contract claim is valid in the amount of $414,049.99, but with final judgment being subject to a determination on the agreement to, enforceability of and impact of the “pay-when-paid” term relied upon by DMS.

(d) There shall be a one-day trial to determine the issue of agreement to and enforceability of the “pay-when-paid” term relied upon by DMS, as well as impact of the term on payment to PBW. A further hearing for directions shall be convened to confirm witnesses, agree on a mode of trial, and to schedule the trial, which hearing shall be fixed on a date arranged through my Assistant Trial Coordinator.

(e) This order is effective without further formality.

Costs

[45] If the parties cannot agree on costs of these motions, and do not wish to defer determination of costs to the trial, then a case teleconference may be arranged with my Assistant Trial Coordinator to make brief oral submissions as to costs, not to exceed 10 minutes per side, with costs outlines and any case law relied upon filed at least five (5) days prior to such case teleconference. Alternatively, the parties may make brief costs submissions at the next hearing for directions, with costs outlines and any case law relied upon filed at least five (5) days prior to such hearing.

MASTER TODD ROBINSON

DATE: January 3, 2020