COURT FILE NOS.: CV-19-613149 & CV-19-613149-A1
DATE: 2021 04 07
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c C.30, as amended
RE: DIRM 2010 INC., Plaintiff
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ABRAAM CONSTRUCTION INC. and J2ASM INC., Defendants
AND RE: ABRAAM CONSTRUCTION INC., Defendant
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GREEN FROG CONSTRUCTION INC., Third Party
BEFORE: Master Todd Robinson
COUNSEL: S. Mannella, for the plaintiff, Dirm 2010 Inc.
R. Mann, for the defendant, Abraam Construction Inc.
HEARD: March 8, 2021 (by videoconference)
REASONS FOR JUDGMENT
[1] Two motions were returnable before me on March 8, 2021:
(a) a motion by the plaintiff, Dirm 2010 Inc. (“Dirm”), seeking summary judgment on its lien claim with the lien amount payable from security previously posted by the defendant, J2ASM Inc. (“J2ASM”), and interest and costs payable by the defendant, Abraam Construction Inc. (“Abraam”); and
(b) a motion by Abraam, framed as a “motion for costs”, but in substance seeking summary judgment for payment of Dirm’s lien from the lien security in court and judgment against the third party, Green Frog Construction Inc. (“Green Frog”), for contribution and indemnity to the extent of any costs liability found against Abraam in respect of Dirm’s claim and for Abraam’s costs of Dirm’s action and the third party claim.
[2] At the outset of the hearing, Dirm, Abraam and J2ASM confirmed that the quantum of the amount owing to Dirm and the value of its lien was not in dispute. Those parties consented to various relief, including discharge of Dirm’s lien and Abraam’s lien, payout of security posted by J2ASM in respect of both liens, and dismissal of Dirm’s action against J2ASM. Green Frog did not attend the hearing, but I was satisfied that Green Frog was not affected by the consent relief sought and granted. That consent order is set out in my endorsement dated March 8, 2021.
[3] Following the consent order, the only outstanding issues in the two motions before me, on which argument proceeded, were whether Dirm is entitled to interest and costs of its action against Abraam and whether Green Frog is liable to Abraam for any amounts in respect of Dirm’s lien action and the third party claim. After reserving my decision on the motions, it came to my attention that Green Frog’s representative had contacted the court requesting an adjournment. In my supplementary endorsement dated March 9, 2021, I provided until March 19, 2021 for a case conference or further hearing to be booked if Green Frog wished to oppose Abraam’s motion, failing which I would proceed to release my decision. No hearing was requested or booked by that deadline, or within the two weeks following it.
[4] For the reasons that follow, I find that Abraam is liable to Dirm for interest on the amounts owing to Dirm and for Dirm’s costs of the action. I also find that, on an unopposed basis, Abraam is entitled to judgment for contribution and indemnity against Green Frog for Dirm’s costs, plus Abraam’s costs of Dirm’s action and the third party action. I have not granted judgment for contribution and indemnity regarding Abraam’s interest liability. Such relief was not sought in Abraam’s notice of motion, which contains the extent of relief reasonably deemed unopposed by Green Frog.
Background
[5] In April 2018, Green Frog was contracted by J2ASM as general contractor in retrofitting a one-storey building at 1 City View Drive, Toronto. In October 2018, Green Frog subcontracted repair work for exterior stairs and construction of an accessibility ramp to Abraam. Abraam subcontracted a large portion, if not most, of its subcontract scope to Dirm.
[6] Dirm’s position is that it completed and invoiced all of its subcontract work, rendering invoices on October 31, 2018 and November 30, 2018. On December 18, 2018, the day after a request for payment of the unpaid invoices, Dirm preserved its lien by registering a claim for lien against the property. A few days later, Abraam registered its own claim for lien for the same amount. Green Frog has also preserved a separate lien, although the extent to which the liens of Abraam and Dirm are subsumed, if at all, is unclear.
[7] On January 23, 2019, Dirm perfected its lien by commencing its lien action. Green Frog subsequently made partial payment of $29,747.50 to Abraam, from which Abraam paid $18,786 to Dirm. The balance was retained by Abraam for its own supply of services and materials, stated to be for “paying engineers, general labour and other expenses relating to the project”.
[8] By order dated September 10, 2020, I granted leave for Abraam to issue a third party claim against Green Frog. Dirm subsequently obtained a judgment of reference and order for trial, with the first hearing for trial directions coming before me on November 23, 2020.
[9] Green Frog has not defended the third party claim, notwithstanding a deadline for doing so being ordered at the first hearing for trial directions. Green Frog has not been noted in default, but Abraam’s motion was booked at a hearing at which Green Frog’s representative was in attendance. The motion was also brought on notice.
Preliminary Matter – Admissibility of Affidavit
[10] Dirm objected to a supplementary affidavit sworn by Abraam’s principal, Joseph Awad, on the basis that it was late-served, raised issues that Dirm had no opportunity to address, and constituted improper sur-reply evidence. After hearing submissions from counsel, I admitted the supplementary affidavit for reasons to follow. I provide those reasons before turning to the substantive arguments.
[11] The crux of the dispute is necessity of the supplementary affidavit. Abraam argued that Dirm’s invoices were only raised for the first time in Dirm’s reply affidavit from its principal, Benny Di Sotto and, as a matter of fairness, Abraam should have an opportunity to respond to reliance on the invoices. Conversely, Dirm argued that introduction of Dirm’s quotation and invoices was solely in reply to the allegation of agreement to a “pay when paid” arrangement, since the express payment terms included in both the quotation and invoices were not addressed by Mr. Awad in his responding affidavit.
[12] On a motion for summary judgment, a moving party is expected to “lead trump” in its evidence. Proper reply evidence addresses issues raised in responding evidence that the moving party could not reasonably have anticipated would be raised. Although the pleadings were not included in the motion materials, I had access to them as the reference master. Abraam’s statement of defence, which is quite brief, expressly pleads a “pay when paid” agreement as a primary defence. That defence was not addressed by Dirm in its initial affidavit evidence, but reasonably should have been anticipated as a basis for Abraam opposing Dirm’s motion.
[13] Abraam did not object to Benny Di Sotto’s reply affidavit as constituting or containing improper reply, but could have done so. I accept that Abraam’s supplementary evidence was intended to respond to the new evidence and documents tendered through Mr. Di Sotto’s “reply” evidence. In my view, in the circumstances, it was fair and appropriate to admit Abraam’s supplementary evidence.
Relevant Law
[14] Neither Dirm nor Abraam filed facta or case law in support of their motions. In the absence of any case law being submitted by the parties, I have applied principles from leading case law in disposition of both motions.
[15] Pursuant to s. 87.3 of the Construction Act, RSO 1990, c C.30, the provisions of the act as they read on June 29, 2018 continue to apply to the improvement and, thereby, the liens and lien actions arising from the improvement. References in these reasons are accordingly to the former Construction Lien Act (the “CLA”).
[16] Rule 20 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) permits a plaintiff (or a defendant in its third party claim) to move for summary judgment on all or part of a claim. In a case such as this one, where the parties have agreed to have the remaining issues determined by summary judgment, Rule 20.04(2)(b) provides that the court is to grant summary judgment where it is satisfied it is appropriate to do so.
[17] Interlocutory steps not contemplated by the CLA require leave of the court, which is obtained by satisfying the court that the step is necessary or would expedite the resolution of the issues in dispute: CLA, s. 67(2). Neither Dirm nor Abraam made any submissions on leave. However, I am satisfied that the motions for summary judgment expedite resolution of the remaining issues in dispute, namely liability for and quantum of interest and costs.
[18] As set out in Hryniak v. Mauldin, 2014 SCC 7 at para. 66, deciding a summary judgment motion involves, 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. 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 if doing so is not against the interest of justice. 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] A master typically cannot exercise the fact-finding powers under Rules 20.04(2.1) and (2.2), but in the context of a construction lien reference, a master has the same jurisdiction, powers and authority as a judge, including use of those powers: CLA, s. 58(4); R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111 (Div Ct) at paras. 39-41.
[20] There will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits. This will be the case when the process allows the court to make the necessary findings of fact, allows the court to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, supra at para. 49.
Analysis
[21] Abraam does not dispute the quantum owing to Dirm of $40,539.00, which it agreed should be paid from the lien security posted into court. Abraam argues that Dirm is not entitled to claim interest on that amount or costs of the action from Abraam based on an oral “pay when paid” agreement reached between the principals of the two corporations. Abraam’s position is that the action was commenced prematurely, that Abraam took reasonable steps to obtain payment from Green Frog, and that, since payment was not made by Green Frog, Abraam has no liability to Dirm for either interest or costs.
[22] As noted above, no case law was tendered by either party on the requirements for an enforceable “pay when paid” agreement. Evidence on whether there was any “pay when paid” agreement is in conflict. Abraam relies on statements by its principal, Joseph Awad, in his two affidavits as supporting a verbal agreement between Mr. Awad and Dirm’s principal, Benny Di Sotto, to a “pay when paid” arrangement. Mr. Di Sotto expressly and unequivocally denies any such agreement, stating, “I can state emphatically that I never had any such discussions with Mr. Awad at any time during, or after, the Project.”
[23] Both of Mr. Awad’s affidavits are sworn, but so too is Mr. Di Sotto’s affidavit. In my view, reconciling their inconsistent evidence requires use of the fact-finding powers in Rule 20.04(2.1). Doing so will permit a timely resolution that is proportionate to the quantum and issues in dispute. It is also consistent with the mandate in s. 67(1) of the CLA that lien actions be as far as possible of a summary character.
[24] Abraam first sought to deal with Benny Di Sotto’s unequivocal denial of any “pay when paid” agreement by questioning his credibility, or at least the reliability of his evidence, through challenging his statements on Dirm’s invoicing. Abraam argues that the evidence supports a “disconnect” (as stated by Joseph Awad in his second affidavit) between Mr. Di Sotto and Dirm’s office. Mr. Awad asserts that Dirm delivered its first invoice when it “had not yet begun work on the project” and further asserts that Dirm “delivered all invoices to Abraam before the project was complete”. The implication is that Mr. Di Sotto’s reliance on Dirm’s invoices is misplaced and that Mr. Awad’s evidence should be preferred.
[25] I do not accept Mr. Awad’s evidence on Dirm’s work progress, and thereby the inference that Abraam seeks to have me draw, for several reasons.
[26] First, the challenge is based on when Dirm’s work was commenced and completed, which is not a fair evidentiary basis upon which to assess the reliability or credibility of Mr. Di Sotto’s overall evidence. Mr. Awad’s first affidavit deals with the “pay when paid” agreement, not dates of commencement and completion of Dirm’s work. Mr. Di Sotto’s reply evidence on Dirm’s invoicing focuses on payment terms reflected in Dirm’s quotation and invoices, as well as other responses to Mr. Awad’s evidence on the purported verbal agreement. Quantum of Dirm’s lien was admitted prior to bringing the motion, so Dirm had no reason to tender specific evidence on the dates of performance of its subcontract work. Abraam’s allegations of premature billing were only raised for the first time in Mr. Awad’s second affidavit.
[27] Second, nothing in either of Mr. Awad’s affidavits supports any personal knowledge of when Dirm commenced or completed work. For example, nowhere in either affidavit does Mr. Awad state that he had any direct involvement in the work on this project, let alone a sufficiently regular on-site presence to know when Dirm did or did not perform its work, or how else he knows when Dirm’s work was commenced or completed.
[28] Third, the “corroborating” engineer inspection report relied upon by Abraam is tendered for the truth of its contents, which is at least a double hearsay use. Double hearsay does not comply with the hearsay exemption in Rule 39.01(4) of the Rules: Airst v. Airst, [1999] OJ No 5866 (CA) at para 6. In any event, Mr. Awad appends the report without any statement that he believes the contents are true, as required by Rule 39.01(4). Even ignoring those evidentiary issues, the report only indicates that certain dowels had not been installed as of December 11, 2018. It is unclear if that work was within Dirm’s subcontract scope. I was directed to no portion of Dirm’s quotation dealing with the same work identified in the report. There is also no evidence supporting a value for that work. It is further significant that Mr. Awad’s evidence is not that Dirm failed to complete its scope of work, just that Dirm’s second invoice dated November 30, 2018 was rendered prior to completing all work. Even assuming that the uninstalled dowels are properly viewed as a deficiency or incomplete work, there is no evidence before me supporting that Dirm had not completed that work by the time it preserved its lien on December 18, 2018. As already noted, quantum of Dirm’s lien is unchallenged.
[29] Having declined to make the inference that Abraam sought, I am left with the conflict between Joseph Awad’s statements that Benny Di Sotto agreed to a “pay when paid” arrangement and Mr. Di Sotto’s unequivocal responding denial of any such discussion or agreement. The main difficulty I have with Abraam’s position is that, in order to accept it on the evidence before me, I must find that Mr. Di Sotto’s unequivocal denial is false. Put simply, I must find that he is lying in his affidavit. However, the converse is not true. Mr. Awad’s statements are not wholly inconsistent with Mr. Di Sotto’s denial.
[30] Specific evidence has been tendered by Mr. Awad on a meeting with Benny Di Sotto in January 2019 (over a month after Dirm’s lien was registered) at a restaurant in Etobicoke. Mr. Awad’s evidence is that he advised Mr. Di Sotto that only a partial payment from Green Frog had been received and a portion of that payment was being paid to Dirm, which was then paid by cheque dated February 1, 2019. The other portion of the discussion is explained as follows:
I further advised Benny Di Sotto, during our conversation, that the balance owing to the Plaintiff would be sought by Abraam from Green Frog through litigation, with the outstanding balance to be forwarded to the Plaintiff once payment was received from Green Frog, to which Benny Di Sotto agreed.
[31] Although Joseph Awad may have subjectively understood that Benny Di Sotto was content to let Abraam pursue the matter, I do not view this evidence as objectively supporting agreement to any “pay when paid” arrangement. Notably, Mr. Awad’s evidence is not that Mr. Di Sotto agreed to excuse Abraam from any payment obligation pending payment from Green Frog. Also, the meeting occurred after Dirm had completed its subcontract work and preserved its lien, and further appears to have occurred after commencement of Dirm’s lien action. No case law authority was provided for varying payment terms of a contract to incorporate an enforceable “pay when paid” term after completing all contract work and preserving a lien. Abraam did not argue an enforceable forbearance agreement regarding Dirm’s claim.
[32] Abraam’s counsel urged me to accept that the “pay when paid” agreement referenced in Mr. Awad’s first affidavit was reached prior to the January 2019 meeting. However, Abraam has tendered no cogent evidence supporting that any “pay when paid” discussion occurred before then.
[33] Other than evidence on the January 2019 meeting, the only evidence regarding a “pay when paid” discussion is self-serving statements in Mr. Awad’s first affidavit that there was such an agreement, which are expressly denied by Benny Di Sotto, and bald, self-serving and unsubstantiated statements in Mr. Awad’s second affidavit that Mr. Di Sotto “instructed” him to “ignore” the invoices sent by Dirm and “just ensure” that Dirm was paid. Mr. Awad’s first affidavit provides no timeframe for the purported agreement with Mr. Di Sotto on payment. The second affidavit is clearly sworn in response to Mr. Di Sotto’s reply affidavit, but does not clearly dispute Mr. Di Sotto’s unequivocal denial of a “pay when paid” agreement. If there was, as I was urged to find, a separate discussion prior to the January 2019 meeting, then why was Mr. Di Sotto’s denial of any “pay when paid” discussion left unchallenged? Why is the only particularized responding evidence regarding details of a meeting that post-dates the purported agreement?
[34] As the party relying on the existence of a verbal “pay when paid” agreement, it was incumbent on Abraam to put its best evidentiary foot forward in support of that position. Not a single substantiating email or text message was put forward to buttress Joseph Awad’s evidence. Absent any reliable or corroborating evidence of a discussion before the January 2019 meeting, and with the evidence on that meeting tendered in response to Mr. Di Sotto’s affidavit denying any “pay when paid” agreement, I infer that Mr. Awad’s first affidavit was also referring to the same January 2019 meeting. I have already found that the discussion as outlined by Mr. Awad at that meeting does not constitute an agreement.
[35] In any event, I find Benny Di Sotto’s evidence on the lack of any “pay when paid” agreement to be more reliable. In addition to denying any agreement to a “pay when paid” arrangement, Mr. Di Sotto’s evidence is that Dirm’s standard practice is to insist on payment within 30 days after completion of a job with all of its customers. Dirm further points to the express term in Dirm’s accepted quotation to Abraam, which states, “Subject to payment terms net 30 days from date of invoice”. Each of Dirm’s two invoices includes a consistent payment term, stating, “Amount due in 30 days from date of invoice.” Dirm also points to an email on December 17, 2018 (the day prior to preserving Dirm’s lien), sent to Abraam, which attached Dirm’s invoices and requested payment. That is consistent with Mr. Di Sotto’s overall evidence and Dirm’s position that there was no agreement to defer payment until after Abraam was paid by Green Frog.
[36] For these reasons, I find that there was no agreement by Dirm to be paid when Abraam was paid, nor does the evidence support any other legal basis for a finding that Dirm sued prematurely and should be denied interest and costs on the admitted amount of its lien. A trial is not required. In the absence of any “pay when paid” term, Abraam breached the subcontract by failing to pay Dirm. The principal amount owing to Dirm is being paid through the terms of the consent order. Dirm remains entitled to judgment against Abraam for the unpaid interest by reason of Abraam’s breach of the subcontract.
[37] Dirm seeks interest on the consent amount of its lien pursuant to the Courts of Justice Act, RSO 1990, c C.43 (the “CJA”), calculated from the date of lien preservation. No calculation of pre-judgment interest was provided. Dirm’s two invoices are dated October 31, 2018 and November 30, 2018. Since I have not accepted Joseph Awad’s evidence on when Dirm performed its work, and there is no evidence supporting that Abraam disputed the invoices at the time they were rendered, I find that the amounts invoiced were due and owing 30 days after the date of each invoice in accordance with the payment term in Dirm’s accepted quotation. It follows that pre-judgment interest ran on the balance of each invoice from 30 days after its date, not from the date of preserving Dirm’s lien.
[38] Since interest on the first invoice was accruing prior to the date of lien preservation and the second invoice was not yet due and payable, calculating interest from lien preservation is formally inaccurate. In my view, it is nevertheless equitable in all the circumstances to calculate pre-judgment interest from that date. Abraam did not take issue with using it. I am also mindful of the modest quantum at issue. It is simply not proportionate to put the parties to further expense of preparing a technically correct interest calculation when the associated legal cost may well exceed the interest variance at CJA rates. I also cannot ignore that Dirm has not sought interest on the $18,786 paid by Abraam for the period in which interest would have accrued on that amount up to February 1, 2019. The aggregate quantum of unclaimed interest on that amount for the period between when the first invoice became due and payable and the date of payment is greater than any inaccuracy in calculating interest from a date that is 12 days prior to the date on which interest began accruing on the second invoice.
[39] For these reasons, I find that Abraam is liable to Dirm for pre-judgment interest pursuant to the CJA on the consent amount of $40,539 from the date of lien preservation to the date of this judgment. Dirm’s action was commenced in January 2019, so a pre-judgment interest rate of 2.0% applies pursuant to s. 127 of the CJA.
[40] With respect to contribution and indemnity from Green Frog, the record supports that Dirm’s work was within the scope of work subcontracted by Green Frog to Abraam, that Green Frog made only partial payment to Abraam, and that Abraam remained unpaid by Green Frog to the extent of Dirm’s unpaid work. The subcontract between Green Frog and Abraam includes a term that payment for progress invoices are due “at the later of 30 days thereafter or 10 days after receipt of Owner payment.” There is evidence that a total of $1,144,800.01 was paid to Green Frog. I am accordingly satisfied that the record supports non-payment by Green Frog to Abraam that was in breach of the subcontract terms.
[41] Abraam requested that I grant judgment for contribution and indemnity against Green Frog to the extent of any liability to Dirm, plus judgment for Abraam’s costs. However, Abraam’s notice of motion does not seek judgment for contribution and indemnity for interest found payable by Abraam. Rather, it seeks only an order for payment of Dirm’s lien from the lien security and various orders for costs. Green Frog did not oppose the motion, but Green Frog is only reasonably deemed unopposed to relief contained in the notice of motion. I am not prepared to grant relief on an unopposed basis for which no notice was given in the notice of motion.
Costs
[42] In determining costs, the court has broad discretion to fashion a costs award that the court deems fit and just in the circumstances: CLA, s. 86. Costs awards should reflect what the court views as a fair and reasonable amount payable by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant, with an overall objective of fixing an amount that is fair and reasonable in the particular proceeding, having regard to the expectations of the parties concerning the quantum of costs: Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at para. 4; Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA) at paras. 26 and 38.
[43] Dirm seeks its costs of the action in the amount of $9,622.98 and costs of the motion in the amount of $3,686.63, both on a partial indemnity basis. Abraam seeks its costs of the action and third party claim from Green Frog in the amount of $8,897.96 on a partial indemnity basis.
[44] Dealing first with Dirm’s costs of the action, Abraam argues that each of Dirm and Abraam should bear their own costs, since both liened for the same amount that was ultimately agreed by the parties to be properly payable from holdback, and Abraam’s intention was always to pay Dirm. I do not accept those arguments. I have found that there was no “pay when paid” agreement, so Abraam was not excused from its payment obligation to Dirm by reason of non-payment by Green Frog. Dirm was required to lien and bring an action to obtain payment as a direct result of Abraam’s breach of the subcontract. Dirm is entitled to costs of the action against Abraam. Given the number of procedural steps taken to date, I do not find Dirm’s bill of costs to be at all unreasonable or disproportionate in the circumstances. It is only slightly higher than Abraam’s own bill of costs, which includes fewer procedural steps.
[45] Dealing next with Dirm’s costs of the motion, I agree with Dirm’s submission that the costs outlines of both parties are generally comparable, despite the difference in amount. Although Abraam’s costs outline totals $1,440.07 on a partial indemnity basis, which is less than half the costs claimed by Dirm, the total time spent by Abraam’s law firm is actually higher. Dirm’s work was performed by a 1982 call with a higher billable rate than the 2016 call representing Abraam. Abraam submits that a junior lawyer could have been used by Dirm, but I am not convinced that involvement of a second lawyer would have resulted in a reduction in overall costs, nor am I prepared to hold that a lien claimant pursuing a modest lien must retain junior counsel or risk not recovering its costs. Dirm’s claim for $3,686.63 on a partial indemnity basis is not unreasonable for an opposed motion for summary judgment having regard to the issues and materials before me.
[46] It is also a relevant factor that Abraam’s unwillingness to pay interest and costs was based entirely on its position that there was a “pay when paid” arrangement, regarding which Abraam relied almost entirely on self-serving and unsubstantiated statements by Joseph Awad. Dirm was completely successful in its motion. In my view, argument of this motion was made necessary by Abraam’s position that it was justified in non-payment, even though it was unable to tender any cogent evidence in support of that position.
[47] For these reasons, I fix the fair and reasonable amount of costs payable by Abraam to Dirm in respect of this action and the motion in the amount of $13,000, inclusive of disbursements and HST, on a partial indemnity basis, payable within 30 days.
[48] As noted, Abraam seeks contribution and indemnity from Green Frog for any costs liability to Dirm by way of the third party claim. Having found that the record supports that Green Frog breached its subcontract with Abraam by non-payment of the amounts owed for Dirm’s work, it follows that Green Frog was a reasonably necessary third party. Green Frog was on notice that Dirm’s costs were being sought and did not oppose the motion. I accordingly grant contribution and indemnity for Abraam’s costs liability to Dirm.
[49] I am also satisfied that Abraam is entitled to its own costs of the action and third party claim, and its costs of the successful motion against Green Frog. My only concern with Abraam’s bill of costs is the total time spent on the motion for leave to issue the third party claim. I find the claim for those costs to be high considering that additional steps were required as a result of the manner in which Abraam proceeded with the motion, as outlined in my prior endorsements for that motion.
[50] Having weighed the factors in Rule 57.01 of the Rules, and in all the circumstances, I fix the fair and reasonable amount of Abraam’s costs payable by Green Frog in respect of Dirm’s action, the third party claim, and Abraam’s motion in the amount of $8,000, inclusive of disbursements and HST, on a partial indemnity basis, payable within 30 days
Disposition
[51] I accordingly order and adjudge as follows:
(a) Abraam shall pay to Dirm pre-judgment interest on the amount of $40,539.00 from December 18, 2018 to the date of this judgment at the rate of 2.0% per annum pursuant to the CJA.
(b) Abraam shall pay to Dirm its costs of this action and Dirm’s motion fixed in the amount of $13,000.00, inclusive of disbursements and HST, and payable within 30 days.
(c) Abraam shall have judgment for contribution and indemnity against Green Frog for the amounts payable by Abraam pursuant to para. (b) above.
(d) Green Frog shall pay to Abraam its costs of Dirm’s action, the third party claim, and Abraam’s motion fixed in the amount of $8,000.00, inclusive of disbursements and HST, and payable within 30 days.
(e) This judgment is effective without further formality.
Interim Report
[52] Both motions by Dirm and Abraam have been heard within the context of a construction lien reference. The findings and conclusions that I have made on these two motions are properly embodied in a report: Rule 54.06 of the Rules (by operation of s. 67(3) of the CLA); Prasher Steel Ltd. v. Maystar General Contractors Ltd., 2020 ONSC 6598 (Div Ct). Since the reference will not be concluded until disposition of the remaining subsumed lien action, an interim report is appropriate. A draft interim report may be submitted in Word format for my review and signature.
MASTER TODD ROBINSON
Released: April 7, 2021
COURT FILE NOS.: CV-19-613149 & CV-19-613149-A1
DATE: 2021 04 07
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended
B E T W E E N:
DIRM 2010 INC.
Plaintiff
- and -
ABRAAM CONSTRUCTION INC. and J2ASM INC.
Defendants
- and -
GREEN FROG CONSTRUCTION INC.
Third Party
REASONS FOR JUDGMENT
Master Todd Robinson
Released: April 7, 2021