Overview

[1] The plaintiff ("TCA") is an architectural firm. TCA sues for payment of its account for $68,970.14 delivered December 3, 2015 in respect of services rendered to the defendant (the "AGH") between May 27, 2015 and June 12, 2015.

[2] TCA acknowledges that it had no written contract with the AGH; it claims to have rendered services to the AGH pursuant to an oral contract. TCA pleads in the alternative that it is entitled to payment for services rendered on a quantum meruit basis.

[3] The scope of the work to be performed and payment terms are in dispute. To a significant extent, a determination of the disputed issues depends on credibility findings.

[4] TCA asserts that under its oral contract, TCA was to complete architectural design services for the AGH which would be used: for a "Canada 150" infrastructure grant application (the "Grant Application"); to secure a private donation of $5 million; for future grant requests from a "future expected large Superbuild fund"; and, for "a potential later Master Plan" - a major expansion to the AGH. TCA asserts that under the oral contract, TCA's fees were to come in at less than $150,000.

[5] TCA asserts that the oral contract was formed on or about May 25, 2015 in the course of meetings between Bill Curran, a licensed architect since 1996 and the President and CEO of principal of TCA ("Curran"), and Shelley Falconer, the Executive Director of the AGH ("Falconer").

[6] The AGH defends the claim and states that TCA's agreement with the AGH was to assist the AGH in the preparation of the Grant Application for a nominal payment or honorarium of $3,000. The deadline for the Grant Application was June 9, 2015. TCA's architectural work was completed by that date and accompanied the written material required on the Grant Application.

[7] AGH's Grant Application was not successful.

[8] TCA acknowledges that at no time prior to June 15, 2015, when TCA provided the AGH with a summary of the time spent by TCA personnel, excluding Curran's own time, (the "Time Summary"), did TCA advise the AGH of the time it expected to spend for services rendered up to June 9, 2015, or the hourly rates to be charged by TCA for its work. Likewise, the Time Summary itself did not disclose hourly rates charged by TCA personnel, nor did it provide a summary of the fees associated with the time recorded.

[9] On October 2, 2015, Curran emailed an invoice to the AGH. He stated that the invoice described was the reimbursable expenses, paid out of pocket, for an amount "just over the $3,000 with the HST" (the "October Invoice"). The October Invoice totalled $3,424.95 and has been paid.

[10] TCA rendered a further account in respect of the Curran's time and the time recorded in the Time Summary on December 3, 2015 (the "December Invoice").

[11] Attached to the December Invoice was a payment proposal whereby the AGH would pay $20,000 immediately, TCA would donate $20,000 and the remaining $20,000 would be deferred "until Capital Project progresses" with a contingency plan in the event the payment was delayed beyond June 2018 or was cancelled (the "Payment Proposal").

Disposition

[12] For the reasons explained below, I accept the position of the AGH that its contract with TCA was limited to the preparation of architectural drawings to be used in support of the Grant Application in return for which Curran, on behalf of TCA, agreed to accept a nominal payment or honorarium of $3,000.

[13] I find that upon payment of the October Invoice, AGH satisfied its contractual obligations to TCA. Accordingly, TCA's claim is dismissed.

Background

[14] In late 2014, Falconer began her employment as the Executive Director ("ED") of the AGH. Falconer was new to the City of Hamilton and this was her first position as an executive director of an art gallery.

[15] Falconer met Curran in late 2014 at an AGH celebration for the outgoing and incoming EDs. Curran identified himself as a long-time supporter of the AGH and as its landlord at a satellite AGH site. In email and in-person communications with Falconer, Curran repeatedly expressed his willingness and interest in assisting Falconer and the AGH. Falconer was "delighted" with Curran's apparent offers of assistance to the AGH which, as a non-profit organization, relies on financial and other assistance of members of the community.

[16] At a December 2014 Finance Committee meeting, Falconer learned that the AGH was in a very difficult financial situation. It was unable to pay its bills, operating at a deficit, and anticipated having difficulty meeting payroll (later funded through a donation from an AGH sponsor). In 2015, Falconer understood that her priority would be to focus on the AGH's finances, especially cash flow, given that the AGH was struggling to make payroll.

[17] Through his lengthy association with the AGH, Curran knew that the AGH's finances had always been limited. Curran admitted that in March 2015, he knew that the AGH was "struggling with a deficit".

[18] Curran offered to help Falconer with architectural questions, and she took him up on that offer. For example, in January 2015, Falconer asked Curran to review an email and an engineering report related to a proposed site for an outdoor sculpture area near Main Street. Curran provided her with his comments, free of charge.

AGH Expansion Plans

[19] In 2011, the AGH had hired architect, Michael Lundholm, to prepare a feasibility study for an expansion of the AGH (the "Lundholm Plan"). The cost to prepare the Lundholm Plan was approximately $150,000; it was paid personally by certain individual board members. The cost to complete the AGH expansion and renovation envisioned by the Lundholm Plan was estimated to be between $30 million and $35 million and contemplated the expansion of the AGH onto Main Street.

[20] The AGH did not have the funding to move forward with the Lundholm Plan. The AGH anticipated that for the expansion to proceed, it would require a contribution of $10 million from each of the three levels of government.

[21] Through his dealings with a prior ED, Curran was aware that since 2012, there had been discussions respecting a proposed expansion of the AGH, however, those expansions plans had not moved forward due to the AGH's limited finances.

[22] In an unsolicited email of March 26, 2015, Curran provided Falconer with copies of a design concept commissioned by the City of Hamilton and prepared by TCA for the development of the property abutting the AGH. Curran's email included suggestions about expanding the AGH and concluded with the words: "Happy to chat further or help in any way needed. Ciao, Bill".

[23] On April 1, 2015, Falconer replied to Curran's email advising that they were under pressure to come forward with a funding proposal to present to the federal government and asked whether Curran would be comfortable meeting with a newly-formed committee of the AGH and community members. Curran immediately responded that he was happy to help in any way, whenever needed, and offered suggestions on potential members of the community who might attend a meeting. In Falconer's response, she alluded to the need to submit a request for funding quickly and that it needed to be simple and easy so that "Harper" (the then governing party) could approve.

[24] To assist the AGH with its vision for the future and with funding opportunities, Falconer arranged a meeting to introduce the Board and other AGH personnel to Lord Cultural Services, consultants who work with cultural institutions such as museums and art galleries, providing business and operational plans. Falconer invited Curran to attend this meeting of April 9, 2015. He attended, together with AGH Board members and others, who were then introduced to Barry and Gail Lord, the principals of Lord Cultural.

[25] Lou Celli, then an AGH Board member, testified that he thought the purpose of the April 9, 2015 meeting was to introduce the Lords, who had worldwide experience in the industry. Celli's recollection was the discussions concerned government grants, necessary for the AGH to move forward with the aspirational vision found in the Lundholm Plan.

[26] Curran did not charge for attending the April 9, 2015 meeting. He testified that he thought that attending the meeting might result in business for him because he knew that the Lundholm Plan had been "in the works" since 2012. Curran described this as a meeting of the "Building Committee", at which there was a discussion of the re-start of an AGH vision for an expansion project and master planning project.

[27] Falconer described the April 9, 2015 meeting as a "high-level" meeting to introduce the Lords, who she thought could assist the AGH with funding opportunities. In her view, the "master plan" was the Lundholm Plan. Falconer testified that she brought to the meeting some of the "big cards" prepared for the Lundholm Plan. Falconer testified that she and everybody at the meeting seemed excited about what the Lords were saying.

[28] On May 19, 2015, Falconer reported to Celli that the federal government had announced a Canada 150 Infrastructure Fund and that the deadline to submit proposals was only three weeks' away. Given the AGH's difficult financial situation, Falconer sought the Board's authorization to retain Lord Cultural, whose fees were estimated at $20,000, even though she had authorization to spend up to $50,000 without Board approval. A special meeting of the AGH Board was held the following day, at which time Board authorization was given to retain Lord Cultural to assist the AGH with securing funds from the Canada 150 Infrastructure Fund.

[29] On April 13, 2015, Curran emailed Falconer inquiring as to next steps. In his two-line email, Curran stated: "Confirming the right vision seems to be a key step." Falconer responded with agreement and suggested that they meet that evening for a quick drink. Curran's response: "My pleasure, happy to help in any way!".

[30] On April 22, 2015, Curran provided Falconer with an electronic copy of the "context plan" he had prepared for the April 9, 2015 meeting. This unsolicited document was provided by Curran free of charge. Falconer understood that this drawing embodied Curran's idea on how the AGH should expand.

[31] On May 7, 2015, Curran emailed Falconer about his contemplated donation of a $2,500 auction item for the AGH Gala - the AGH's major annual fundraising event.

[32] The trial evidence included the testimony of Sean Stanwick, a consultant with Lord Cultural, called to give evidence by TCA. Stanwick described himself as a close friend and business associate of Curran and was a member of the Lord Cultural team working with the AGH on the Grant Application.

[33] On May 14, 2015, Curran emailed Stanwick directly, asking whether Lord Cultural had received the go-ahead from the AGH. Stanwick replied that Lord Cultural had been awarded the AGH project but he did not know much more about it. Curran responded: "Hoping to hear AGH is moving soon, very cool to be involved in it. Would be fun to work together on it."

[34] On May 21, 2015, Curran emailed Falconer confirming her earlier request that he look at the Lundholm invoices and to explain them to her, repeating that he is "happy to do so". Curran also invited Falconer to join him at the Hamilton Club to meet new members. Falconer accepted the latter invitation and advised that she would get copies of the invoices to Curran. Minutes later, Curran responded: "Cool, just send them along and I am on it! Happy to chat over a glass of wine or lunch any time. Ciao, Bill".

Meeting of May 25, 2015

Curran's Evidence

[35] On May 25, 2015, Falconer told Curran about the Canada 150 Infrastructure grant funding opportunity. They then met after hours at Falconer's office, following which, Curran took Falconer to dinner at a local restaurant. The parties disagree on what was discussed at the office and dinner meetings.

[36] Curran testified that he made notes of the meeting. He testified that he understood that there was a major funding call from the federal government and that the AGH would be submitting a request for funding of a major development. Curran expected that the Grant Application would require the AGH to show a "shovel-ready" plan; one that included technical drawings; design concept; schematic design; etc. Curran testified that he was thrilled to be involved in this "high profile, exciting project".

[37] In cross-examination, Curran expanded on his evidence and stated that earlier in the day, he had spoken with Falconer by phone who had asked if he could provide architectural services for the Grant Application. He was told that the major element was a new Learning Resource Centre ("LRC") because a local AGH supporter, Carl Turkstra's Incite Foundation, appeared willing to offer a donation of $5 million on that basis.

[38] Curran acknowledged that the discussion he had with Falconer on May 25, 2015 was "high level" - that the grant would be used to apply for funding for the LRC - but there were no "nitty-gritty" details.

[39] Curran testified that he told Falconer that he could do the work for less than $150,000. Although Curran described this as a very specific discussion, he made no reference to this discussion or to his proposed "less than $150,000" fee in his notes. Curran testified that Falconer asked him for a fee proposal letter to which he responded that he had "no idea" what it would cost, other than that TCA's fee would be less than $150,000 charged by Lundholm. Curran had no recollection of Falconer's reaction to this discussion.

[40] Curran testified that it was very unusual to have only two weeks within which to design and draw a major expansion to a shovel-ready building. Curran also testified that he told Falconer that he did not know what TCA was being asked to do, to which Falconer responded that Curran should find out the scope of the proposal and the fees from Dov Goldstein of Lord Cultural.

[41] Goldstein testified at trial. His evidence was that Lord Cultural was to provide the text of the Grant Application and Curran was to provide visual support to illustrate the text - a couple of renderings or drawings, a very high level approach. If the grant was awarded, then they would do a detailed description of the work.

[42] Curran testified that May 25, 2015 was the only time he discussed fees with Falconer and that in their discussion, nothing was said about any limit to be placed on the fees charged by TCA apart from Curran's promise the TCA's fees would be lower than the $150,000 charged by Lundholm. Curran stated that other than for this promise, the AGH never put a cap on the fee TCA could charge.

[43] Curran testified that it was impossible to quote a fee without knowing the scope of the work, which was "very, very nebulous at that point". Curran denied that he offered to donate his time or do the work for free. He stated that the usual fee charged is based on 15% of the cost to build. In this case, the planned expansion was expected to cost between $30 million and $40 million, and his/TCA's anticipated fee could be $6 million –far beyond what anyone could sensibly imagine would be donated. Curran's evidence on this point appears to refer to the fees that might be charged to prepare the complete the architectural work for a $40 million building. Curran admitted that, notwithstanding anything set out in the Grant Application, the project was not shovel-ready.

[44] Curran stated that at the dinner meeting of May 25, 2015, he learned of the June 9, 2015 deadline for submitting the Grant Application – a very short timeframe. Curran testified that Falconer confirmed that Lord Cultural had been hired for "visioning" and to help with the application. Curran denies that Falconer told him that Lord Cultural's retainer was $20,000 or the amount of the Canada 150 Grant.

[45] Curran testified that after the May 25, 2015 meeting, he did not again mention to Falconer that he could not produce a fee proposal because the scope of work was unclear. Curran further acknowledged that he did not describe the architectural process to Falconer. Curran assumed that because Falconer was a seasoned executive, he did not need had to explain the process to her.

[46] Curran acknowledged that he did not have a detailed discussion with Falconer about the difference between "schematics" and "preliminary drawings" and that they did not discuss hourly rates to be charged by TCA. Curran admitted that in retrospect, he did not think that Falconer understood the scope or amount of the work involved.

[47] Curran's evidence was that TCA did three months of work i.e. it designed a $40 million building - in 2 ½ weeks.

[48] Curran denied that Falconer told him that she had no budget for his work and that the most she could pay was an honorarium of $3,000.

Falconer's Evidence

[49] Falconer's evidence about what was discussed on May 25, 2015 conflicts in key areas with that of Curran.

[50] Falconer testified that she discussed the Grant Application with Curran. Falconer did not keep notes but following her dinner with Curran, Falconer emailed Dov Goldstein, copying Curran, advising that she had met with Curran and reviewed with him the elements of the grant criteria and the tight deadline and reported that "Bill is in."

[51] Falconer testified that Curran indicated that he was keen to help with the Grant Application, which was the purpose of their May 25, 2015 meeting. According to Falconer, Curran wanted to articulate the Lundholm ideas in the Grant Application.

[52] Falconer denied that there was any discussion respecting the creation of the LRC; she said that her discussion with Curran was a high-level discussion related to the Grant Application. Falconer testified that she told Curran that Lord Cultural had been retained, on a $20,000 retainer. Curran stated that he wanted to help and when Falconer told him that the AGH had no budget for Curran, he replied that he wanted to be paid what Lord Cultural was being paid. Falconer told him that was impossible, and that all she could afford to pay was an honorarium of approximately $3,000. Her recollection was that Curran nodded in agreement to that arrangement.

[53] At the dinner, Falconer stated they did not discuss the grant details but did speak of the Lundholm Plan and her understanding that cost to complete the expansion based on the Lundholm Plan would be between $30 million and $35 million. They discussed Lundholm giving Curran access to his designs, because Lundholm wanted to help.

[54] Falconer denied having any discussion with Curran about a contract with TCA whereby TCA's fees would be "less than $150,000". Among other things, Falconer's own spending authority was limited to $50,000.

[55] Falconer was not clear on what work Curran would be doing on the Grant Application. Falconer testified that if Curran had chosen not to assist with the Grant Application, the AGH would have worked with the Lundholm Plan and simply created a different narrative on the Grant Application.

[56] Falconer stated that at the May 25, 2015, meeting she understood that architectural illustrations were required for the Grant Application and she left it to Curran to determine what work he would do in the context of the Grant Application and with remuneration limited to a $3,000 honorarium.

Events after the May 25, 2015 Meeting

[57] It is Curran's position that at the May 25, 2015, he/TCA had committed to do more than to provide some drawings to support the Grant Application. Curran asserts that he/TCA was retained to complete a re-design of the Lundholm Plan to add in an LRC and to complete a "schematic design" for the future expansion of the AGH.

[58] Curran asserts that his understanding of what TCA had agreed to do was set out in his email to Lundholm on May 26, 2015 at 9:55 a.m., copied to Falconer. In that email, Curran told Lundholm that "we have been asked to develop this schematic design… working from your excellent feasibility work" and asked Lundholm for copies of his electronic drawings, planning studies, auto-cad drawings, etc. Lundholm provided Curran with documents as requested.

[59] Falconer denies that she asked TCA to prepare a "schematic design". Falconer described those words as "architecture speak" and not words that she would use.

[60] In cross-examination, Curran acknowledged that he did not discuss with Falconer that to understand a project's requirements, the architect needed the owner to provide a vision and to discuss details such as room sizes and use and to provide a budget. The architect would also need to discuss the concept with the owner and the to propose several versions from which to obtain feedback, etc.

[61] As a senior and experienced architect, Curran understood the information he required from a client that was utterly absent from his discussions with Falconer. Curran admitted that TCA was operating in a vacuum. Curran's evidence entirely undermines the plaintiff's assertion as to its understanding of its contract with the AGH.

[62] By contrast, Falconer's evidence supports the AGH's assertion that the contract she was discussing and to which she intended to bind the AGH was for TCA to provide a few drawings to accompany the Grant Application in return for a nominal fee; well within Falconer's spending authority and comfort level, given the AGH's finances.

[63] By May 26, 2015, TCA, the AGH and Lord Cultural knew that the Canada 150 Infrastructure Fund offered a maximum grant of $1 million. Despite that, after a telephone conversation among Stanwick, Curran and Falconer, a decision was made to proceed with the Grant Application.

[64] Curran testified that Stanwick's internal email to Lord Cultural personnel dated May 27, 2015, fairly summarized the telephone discussion Stanwick had had with Curran and Falconer that referenced the strategy to present the project as part of long-term, master plan. It also mentioned that Curran was proceeding on the premise that the project was likely to include the LRC, based on donor money [referencing the anticipated Turkstra donation]. However, it is clear that the email is referring to Grant Application, which was to consist only of the submission form and architectural drawings package.

[65] The email also posed the question: "Needs to consider this submission as a smaller part of larger superbuild monies likely to be released in the next wave?". That reference appears to be consistent with discussions that there were rumours of a hoped-for future federal government grant offering. That reference, however, falls well short of supporting a finding, or even an inference, that Curran/TCA was instructed, authorized, or had a contract with the AGH to do the work for which it now claims payment.

[66] On May 28, 2015, Lord Cultural emailed the Lord Cultural team, Falconer, and Curran, attaching the Grant Application forms and application guide and Lord Cultural's suggestions with respect to the allocation of tasks. In that email, TCA was to be responsible to complete items 11 and 18 – 19 and was jointly responsible with the AGH and TCA to insert a figure for the project costs and proposed funding. The paragraphs for which TCA was responsible include a request about the change in the building's footprint and the date on which the project would begin. The latter specifically states that any costs incurred prior to April 1, 2016 would not be reimbursed.

[67] Falconer agreed that this email is consistent with her understanding of what had been agreed to, namely, that illustrations were needed for the Grant Application. She left it to Curran to decide what to do, in the context of the Grant Application, understanding that he was volunteering his work for an honorarium of approximately $3,000.

[68] Falconer testified that the costs incurred to complete a grant application are not permitted to be reimbursed from the grant monies awarded. Falconer's evidence was corroborated the trial evidence of Goldstein, a principal consultant with Lord Cultural.

[69] Goldstein agreed with Falconer that the level of certainty of getting a grant is very low and that, if awarded, the grant monies cannot be used to pay the costs of the application. Goldstein testified that for those reasons, Lord Cultural charges a nominal fee or honorarium when it assists an organization in preparing a grant application.

[70] By May 26, 2015, Curran specifically pointed out to Falconer that the Grant Application was for a grant of a maximum of $1 million. His evidence was that Falconer did not seem to understand that the Grant Application was for a "150 celebration" and not a capital grant or, Curran testified, maybe she did not care because she thought another funding opportunity would arise.

[71] On May 30, 2015 Curran emailed a news article to Stanwick that described the Canada 150 money as a "glorified gazebo fund". Stanwick replied that he felt the AGH's submission was too big for the fund and asked Curran if they are still "going for it". Curran's response was: "We go for it since we must, but hoping for an extension, in looking beyond this by planning to extend this into a proper, considered 3 - 6 month process with full consultation, etc.". Falconer was not copied on this email.

[72] By May 30, 2015, Curran was fully aware of the relatively modest amount available from the Canada 150 fund and, among other things, that: 1) obtaining the grant was uncertain; 2) the costs of the Grant Application could not be reimbursed from any grant awarded; 3) designing a renovation, as here, was more costly than new construction; 4) it would take a great number of hours to prepare designs which, in his own words, would then be replaced by plans prepared after a proper and considered 3-6 month process with full consultation; 5) he and Falconer had not discussed fees, hourly rates, or the time spent or expected to be spent by June 9, 2015 (i.e. three months of work in 2 ½ weeks), to meet the deadline on the Grant Application.

[73] On and after May 30, 2015, in the face of all that Curran knew, and without any further consultation with or instruction from Falconer, Curran pressed ahead to have TCA continue with its work. Based on the Time Summary, most of the TCA time was spent after May 30, 2015.

[74] Curran asserted that Falconer went away on vacation for part of the 2 ½ week work period. Falconer's evidence and records establish otherwise. In any event, Curran acknowledged that Falconer was always available by telephone and email.

[75] Curran's evidence was that he understood how much work was involved in developing the schematic design and the fees associated with the work, yet he did not tell Falconer:

(1) how much work was involved;

(2) how much time he expected TCA would need to invest to complete the work;

(3) the usual hourly rates charged by TCA staff;

(4) at any time prior to completion of the work, how much time TCA was, in fact, investing on the work (which totalled approximately 300 hours, excluding the 60 to 80 hours spent by Curran);

(5) the amount of TCA's fees on an ongoing basis;

(6) how TCA expected to bill for its work;

(7) that TCA would never do this work for a nominal fee or honorarium; and

(8) that it was very unusual to for an architect to prepare drawings without any direction from the client.

[76] Curran asserts that Falconer should have realized the nature and the scope of the work that was being invested by TCA, from his emails of June 1, 2, and 3, 2015 to Falconer, or on which she was copied. Those read, in part, as follows:

June 1, 2015 11:38 a.m.

We’re full steam on the design and drawings. I was in the gallery yesterday exploring and verifying things…We’re building on some good foundation work from Mike Lundholm. We have also developed some great ideas to advance. I walked Michael through them on Friday and he was very positive, so we have avoided any glaring pitfalls….As we discussed, with this schedule will be hard-pressed to produce anything of value, but we will ensure that you have a solid design and presentation package. Once we get past this deadline we can catch our

breath and regroup and restart the process with proper consultation, exploration and depth of development. Happy to chat anytime! Ciao, Bill;

June 2, 2015 9:45 a.m.

We’re working flat out here, so you can drop by anytime and see where we are at!! Just let me know when you have a gap in your schedule. Ciao, Bill; and

June 3, 2015, 8:39 p.m.

[Responding to the Stanwick’s request to Curran and Shelley to set a time for a call] Anytime Shelley, try my cell…, we’re just cranking here full out! And I am ducking all calls. Ciao, Bill.

[77] Falconer's evidence was that she relied on Lord Cultural to determine what was necessary for the Grant Application. Also, Falconer was pleased that Curran was working from the Lundholm work. Falconer testified that Curran's mention of regrouping and restarting the process had nothing to do with the Grant Application, which was her focus.

Events on and after June 9, 2015

[78] The plaintiff submits that the events and communications between Curran and the AGH after June 9, 2015, are relevant to a determination of the issues.

[79] The Grant Application was submitted on June 9, 2015, with renderings and floor plans prepared by TCA. The materials were provided to Falconer's office but neither she, nor anybody else at the AGH, reviewed TCA's materials prior to submitting the Grant Application. Notwithstanding that, in an email to Curran and Lord Cultural, Falconer thanked Curran for his "Herculean efforts". Curran responded to this email, which read, in part, "Looking forward to next steps. Will get everyone an updated design drawing package in the morning."

[80] On June 10, 2015, Falconer circulated a copy of the completed Grant Application. On that date, Curran emailed Falconer a design synopsis, highlighting the LRC and other changes he had made to the Lundholm Plan. On June 12, 2015 Curran wrote to Falconer and Lord Cultural attaching TCA's initial concept design package for review and comment stating: "Please take is (sic) a point of departure since we worked so quickly without the normal interactive process. We're very much looking forward to working with everyone to refine this and move this forward!"

[81] At no time prior to June 17, 2015, after the TCA work was completed, did Curran tell Falconer hour many hours TCA had spent or, as alleged by TCA, that TCA turned away other work to complete work for the AGH.

[82] On June 17, 2015, Curran sent Falconer an email entitled "Detailed Time Report – AGH -All hours to June 14, 2015. The email reads as follows:

Hi Shelley,

Let me know when you catch your breath and we can chat about how fees and costs and how to make it work for you. We’ve got our hours (attached, plus my 68 hours that are not shown). I’m just waiting on an invoice from our renderings. Printing is a small expense too.

Assuming that we’re going to be engaged for further design development work, I’m open to donating some of this work to the AGH. I’m also able to defer the billing of some of this work until you get the Masterplan work going since we had to do some work now that really is most helpful to the going forward work.

The key is to figure out what works for you and the AGH finances!

Happy to chat anytime that your crazy schedule and workload allows!!

Ciao, Bill

[83] The Time Summary was attached to the above email and showed a total of 301.75 hours recorded by various persons at TCA, listed under the headings: design development, preliminary, schematic design and working drawings. The Time Summary does not show fees or hourly rates.

[84] Falconer testified that she wondered why Curran sent her this email and Time Summary. She testified that she was concerned and shocked by the hours that Curran had put in for a $3,000 honorarium and assumed that Curran was looking for work and to become part of the AGH's future development plans moving forward. In Falconer's view, the AGH had retained Lord Cultural to work with the AGH based on the Lundholm Plan. Assuming the AGH was awarded the grant, the next step would be the design selection and that, if awarded, the grant could be used by the AGH to invite an RFP [Request for Proposals].

[85] Throughout the summer of 2015, Curran emailed Falconer respecting "next steps" and asking to discuss fees. In his email of July 8, 2015, Curran inquired about the schedule and next steps for the "Masterplan process" and stated that he wished to get an invoice to the AGH for work today and to "talk about donating part of our fee back to the AGH to reduce the cost from our 'book rates', and open to deferring some too to work with your Masterplan timelines and budget since we are now ahead of the process".

[86] Falconer responded that upon her return from holiday, she should have a better idea of next steps and of the infrastructure funding outcome and she thanked Curran for his unwavering support stating "the AGH (and I) are so fortunate to have you in our corner". Curran's response: "Happy to help, thrilled to be a part of the AGH future, a career highlight for me".

[87] Emails were exchanged between Curran and Falconer in September 2015. In one email, Curran asked whether he could submit TCA's design concept to the Canadian Architect Award of Excellence and mentioned that TCA needed to get its invoice to the AGH. Falconer's response was that the concept could be submitted but could not go public and that "we have a very angry Carl Turkstra out there upset that we had you do preliminary work to apply for the Infrastructure funding…among many other things is upset about! Would love to see you let me know when next week you can meet up after work – and yes, let us settle your bill for the work on the grant."

[88] Falconer asked TCA to direct TCA's request for payment to Eric Nielsen, AGH's Director of Finance, Administration and Human Resources.

The Invoices

[89] On October 1, 2015, TCA submitted the October Invoice and asked Nielsen for an opportunity to discuss TCA's fees, donations and deferrals, etc. The October Invoice was paid in full by the AGH.

[90] On December 1, 2015, the AGH Board decided to put a hold on any expansion plans. By that date, the AGH knew that the Grant Application was unsuccessful and no additional capital funding from the federal government had been announced.

[91] Curran's evidence was that in December 2015, he learned from Board member, Lou Celli, that the AGH had determined that it was not a good time to expand.

[92] On December 3, 2015, Curran emailed the December Invoice and Payment Proposal to Falconer and Nielsen. The email read:

Hi Shelley and Eric,

I know everyone is real busy and you haven’t been able to find some time to meet. Perhaps we can solve this by email if that is easier? But we would like to get some compensation after 5 plus months of waiting on this. I’ve attached a draft of our invoice based on our costs and hours. Please review it and let me know what you would like to do to solve this. Open to any suggestions to get this solved. Ciao, Bill (emphasis added)

[93] The December Invoice was labelled: Art Gallery of Hamilton Redevelopment Study: prepare base drawings, design studies, client consultations, prepare presentation drawing package for grant. The December Invoice was for $68,970.14 and included fees totalling $60,555, including 70 hours of Curran's time charged at $15,400 (not referenced in the Time Summary), reimbursable expenses of $487.60, and HST of $7,935.54.

[94] The Payment Proposal, attached to the December Invoice, was entitled: "Art Gallery of Hamilton Expansion Masterplan Concept Work Payment Resolution" and stated:

Total Fee Earned: $60,000

Payment now: $20,000 ($10,000 from Lord Cultural Resources visioning contract). Payment should have been due July 15, 2015.
Donation to AGH: Corporate membership: $5 k/ year x three years = $15 k Tax receipt/TCA donor recognition: 5 k Total Donation: $20 k
Defer payment until Capital Project progresses: $20k Contingency plan for payment if delayed beyond June 2018 or cancelled

[95] Falconer stated that she was shocked when she received the December Invoice.

[96] Via emails sent in January and February 2016, Curran pursued Nielsen for payment of the December Invoice.

[97] By email of March 8, 2016, Nielsen noted that the October Invoice had been paid and stated that the AGH had no record of a signed contract or agreement with TCA relating to the December Invoice. Nielsen also advised that he had consulted with Falconer who confirmed there was no contract or formal agreement and that the AGH's understanding was that Curran had been honoured to assist with the Grant Application process and happy to receive a taxable donation receipt for any additional time. Nielsen also advised that the AGH was not able to hire any firm without undergoing the appropriate request for proposal (RFP) process and Board approval and receiving a clear fee structure for services and deliverables. Nielsen offered to provide a corporate membership and/or taxable donation receipt to TCA and again thanked Curran for his time and effort in assisting with the Grant Application.

[98] Curran testified that Nielsen's email of March 8, 2016 was the first time anyone at the AGH denied payment or asserted that AGH had understood that TCA was to provide services for free.

[99] Negotiations between the parties in an attempt to resolve TCA's claim were unsuccessful. Although there was evidence at trial concerning settlement discussions, in determining the issues before me, I give no weight to evidence concerning offers made to avoid or resolve this litigation.

Analysis

[100] As noted above, I have concluded that the plaintiff's contract was limited to assisting the AGH with the Grant Application, for which the plaintiff agreed to accept an honorarium. In reaching this decision and without repeating all the evidence, I have considered the following:

(i) Curran's evidence that he met with Falconer on May 25, 2015 to discuss the plaintiff's assistance to the AGH on the Grant Application;

(ii) Curran's evidence that he knew that the AGH was operating at a deficit and that funding for proposed AGH expansion was to come from the federal government;

(iii) Curran's evidence that he made a number of assumptions about TCA's future involvement in the so-called Masterplan, none of which were explicitly communicated to or confirmed with Falconer. Examples of such assumptions include Curran's assumption that, after the grant was awarded, TCA would prepare a fee proposal and a written contract; and Curran's assumption that there would also be a fundraising effort based, in part, on a "suggestion" that the TCA work would be used for other grants;

(iv) Falconer's evidence, which I accept, that in their discussions on May 25, 2015, she told Curran that Lord Cultural had been engaged at a $20,000 retainer and that when Curran asked to be paid the same amount, she told Curran that that was not possible;

(v) Falconer's evidence, which I accept, that she told Curran she had no budget for his work and could offer only an honorarium of $3,000, which Curran accepted. I find Falconer's evidence on this point to be credible, given the significant financial challenges then facing the AGH;

(vi) Curran's evidence that Falconer intended to bind the AGH to the contract, as alleged, is not credible: the contract would have exceeded Falconer's $50,000 authority. In this regard, I accept Falconer's evidence that she was reluctant to use her spending authority and had sought Board approval to bind the AGH to spend even the lesser amount of $20,000, in its contract with Lord Cultural;

(vii) Curran's private notes from his meeting with Falconer on May 25, 2015 make no reference to being authorized to render an account to AGH for TCA's services, provided that it came in at under $150,000. Furthermore, Curran did not confirm with Falconer his assumption of that TCA' had entered into a contract with the AGH and, in fact, never discussed the terms usual and important to any business: the work requested, how fees were to be determined, and how and when payment would be made;

(viii) The Payment Proposal is consistent with Falconer's evidence as to what was discussed with Curran on May 25, 2015. For example, Falconer testified that she told Curran that the AGH had a $20,000 contract with Lord Cultural, which Curran denies. However, the Payment Proposal suggests that the AGH pay TCA $10,000 from the Lord Cultural contract. Also, the Payment Proposal includes a $20,000 donation, which is consistent with Falconer's understanding that Curran was a generous patron of the AGH. Finally, Curran's offer to defer payment is also consistent with Falconer's evidence that Curran knew that the AGH had no funds available to pay for TCA's drawings on the Grant Application. Viewed with the other evidence, the December Invoice (identified as "draft") and the Payment Proposal serve to undermine the plaintiff's assertion that it had a contract, and to support the defendant's position on what was agreed;

(ix) Curran's evidence that he truly believed or realistically assumed that the TCA had a contract, as alleged, cannot be accepted. Such a contract would assume that the AGH was, in essence, offering TCA a blank cheque, provided it was less than $150,000. Leaving aside that Curran knew that the AGH was experiencing dire financial difficulties, Curran's evidence that he believed that Falconer/the AGH (or, indeed any client) would, and did, agree to pay TCA an undetermined amount, for undefined services, charged at an undisclosed rate, for drawings and plans prepared with virtually no direction from the AGH, with respect to the "largest expansion in the history of the AGH", simply defies belief;

(x) Curran's evidence shows that the manner in which TCA performed its work was driven entirely by the June 9, 2015 deadline for the Grant Application. While the work performed may have far exceeded what was required for the Grant Application, the evidence does not support a finding that the AGH used the work except for that purpose nor that the additional work was performed at the request or direction of Falconer or the AGH. Rather, the evidence supports a conclusion that the work completed by TCA was a choice Curran made: he was "thrilled" to be involved in this fashion with AGH, hoping that his involvement and efforts would "lead to business for him";

(xi) Curran's conduct must be considered in context. Curran knew of the AGH's dire financial situation, yet he never disclosed to Falconer that in the two and one-half weeks prior to June 9, 2015, TCA was running up fees and disbursements of over $72,000, for which TCA expected to invoice the AGH. Curran also did not tell Falconer that TCA was turning away other work, in order to meet the Grant Application deadline. Curran's testified that he "assumed" that Falconer knew what was involved but the defendant failed to establish that Curran's assumptions were reasonable. I find that a reasonable person, in Curran's place, would have communicated his "assumptions" to the client from whom payment was to be sought;

(xii) Curran's evidence that he had no discussions concerning fees, does not support a finding that TCA had a contract with the AGH but can support the AGH's position that there was no discussion about fees because, apart from an honorarium, the AGH was not able, or offering, to pay fees;

(xiii) That Curran was not "reckless", as argued by the defendants, but, rather, was an optimist: he had developed a good relationship with Falconer and this was an opportunity for Curran to demonstrate his design skills and his willingness and ability to do whatever was needed to meet even the most onerous of deadlines;

(xiv) Falconer's testimony that she never asked Curran to provide a fee proposal. That evidence is consistent with her discussions with Curran on May 25, 2015 and with Falconer's other evidence concerning the AGH's financial situation; her need to focus on immediate cash-flow; the $50,000 cap on her spending authority; her knowledge that the Board members had a very personal interest in the Lundholm Plan; and her understanding that the actualization of the AGH expansion, would start with an RFP;

(xv) Curran's evidence that he assumed that when they were past the "mad panic" caused by the June 9, 2015 deadline, he expected to meet with Falconer/the AGH to discuss the scope of TCA's work and the specifics of the proposed expansion, is consistent with Falconer's evidence that her discussions on May 25, 2015 were limited to whether TCA could assist with the Grant Application;

(xvi) Curran acknowledged that his discussions with Falconer on May 25, 2015 concerning the Lundholm work related to the Grant Application and that Falconer had suggested that Curran use the Lundholm work. Curran's testimony is consistent with Falconer's evidence that she knew that the $3,000 honorarium would not cover TCA's time and that she suggested and expected that Curran would use the Lundholm work so as to minimize the amount of time spent by TCA and for which it would not be paid; and

(xvii) Although the work completed by TCA that accompanied the Grant Application contributed to make it a "strong submission", both Curran and Falconer testified that architectural drawings were not required. I accept Falconer's evidence that, had Curran not offered to assist, the AGH could and would have used the Lundholm work with some limited re-labelling.

[101] Taken as a whole, I prefer Falconer's evidence to Curran's. While Falconer may not have had a flawless memory of the details of events, which date back to 2015, on key aspects, namely, her discussions with Curran about what he/TCA was being asked to do and for what payment, Falconer did have a good memory and I accept her evidence.

The Law

Preliminary Issue: Rule in Browne v. Dunne

[102] In reply submissions, the plaintiff takes issue with the defendant's closing submissions. Firstly, the plaintiff states that the defendant has referred to certain exhibits for the truth of their contents and that the parties had agreed that the content of any document marked as an exhibit "had to be put properly into evidence through a witness adopting the content" (Plaintiff's submissions, para. 4).

[103] Secondly, the plaintiff states that the defendant's written closing submissions refer to statements allegedly made by Curran about which Curran was not asked at trial, which violated the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H. L.). The plaintiff submits that the offending portions of the defendant's submissions ought not to be accepted or that an adverse inference ought to be drawn against of the weight of the evidence: see R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687 (C A.), leave to appeal refused [2001] S.C.C.A. No. 124.

[104] Without first seeking leave, the defendant delivered a two-page letter ostensibly to reply to the plaintiff's newly-raised submissions on the rule in Browne v. Dunn. The plaintiff objects to the court receiving the defendant's unauthorized additional submissions.

[105] I allow and consider the defendant's further submissions but only as they relate to the rule in Browne v. Dunn, which, until the plaintiff's reply submissions, had not been raised.

[106] My findings respecting the applicability and impact of the rule in Browne v. Dunn are set out below.

[107] The rule in Browne v. Dunn is intended to ensure trial fairness to a witness by requiring that when an opposing party intends to lead evidence that casts doubt on the truthfulness of that witness, the witness must be given an opportunity to deal with that evidence. The rule also assists the trier of fact in assessing credibility: see Paciocco & Stuesser, The Law of Evidence, seventh edition, Irwin Law, 2015 at pp. 472.

[108] The plaintiff takes issue with the defendant's assertions concerning the truth of the contents of certain emails sent by Curran.

[109] I have considered the concerns raised by the plaintiff relating to the rule in Browne v. Dunn. I conclude the rule is not engaged when the email does not conflict with Curran's evidence. Thus, if the email contradicts Curran's evidence, I have relied solely on oral testimony. As for the other evidence identified, such as the emails referenced in the defendant's closing submissions at paragraphs 8w, x, y, and bb, I do not find that evidence to be determinative.

[110] I have also considered whether Curran's obligations under the Architects Act, R.S.O. 1990 c. A.26, R.R.O. 1990, Reg. 27, s. 42 assist me in determining the issues in this action. I conclude that they do not.

Formation of Contract

[111] It is trite law that a contract requires an offer, acceptance, and consideration.

[112] It is also trite law that the onus is on the plaintiff to prove its claim.

[113] Based on my evidentiary findings, I conclude that the plaintiff has failed to establish that the contract offered by the AGH was to have TCA complete architectural design services for the Grant Application and also, for the "future expected large Super build fund, to secure donation money of $5 million and towards a potential later Master Plan" for an undetermined fee, to come in at under $150,000.

[114] Rather, I conclude that the contract offered by the AGH was as described by Falconer: to assist the AGH with the Grant Application for an honorarium of $3,000, using the Lundholm work, from which TCA would create some drawings that would include an LRC.

Implied Acceptance

[115] The parties appeared to agree that the work prepared by TCA far exceeded what was required by the terms of the Grant Application. Much of the trial evidence was directed at whether, by its conduct, the AGH had impliedly accepted TCA's offer to complete the architectural services actually provided by TCA and for which TCA now seeks payment.

[116] The parties agree that Saint John Tug Boat Co. v. Irving Refinery Ltd., 1964 88 (SCC), [1964] SCR 614 is the leading case on implied acceptance. That case involved a contract for the supply of tugboats on terms set out in the plaintiff's letter. Although there was no written acceptance, the defendant verbally arranged to rent the tugboat on the terms set out in the letter. The arrangements were explicitly extended twice but the defendant continued to use the tugboat services for many months thereafter. The Court adopted the following statement[^1] as the test to apply when determining whether conduct, unaccompanied by any verbal or written confirmation, could constitute an acceptance of an offer:

If, whatever a man's real intention may be he so conducts himself that a reasonable man would believe that he was consenting to the terms proposed by the other party and that other party upon that belief enters into contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.

[117] This test was recently adopted in Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, in which the Court stated: "The test is objective, and the offer, acceptance, consideration and terms may be inferred from the parties' conduct and from the surrounding circumstances" (at para 37.)

[118] The facts in cases referenced above differ from the facts in this case. Here, the terms of the alleged offer were not set out in writing and the parties' evidence conflicts as to the terms. As noted, I have accepted the defendant's evidence as to the terms.

[119] The evidence leads me to conclude that the "offer" came from Falconer/the AGH, who invited Curran to meet with her to ask if TCA would assist the AGH in the Grant Application. I have accepted Falconer's evidence that Curran indicated his acceptance to that offer by nodding. In addition to Falconer's testimony on that point, the surrounding circumstances and the parties' conduct also lead me to the same conclusion.

[120] The surrounding circumstances also show that Falconer was acting reasonably when she believed that Curran had agreed to assist with the Grant Application for an honorarium:

(a) she had known Curran for only a short time, during which he presented himself to Falconer as a long-standing AGH supporter and donor and who had previously offered her professional assistance and advice without charge;

(b) Curran knew of the AGH expansion plans prior to his meetings with Falconer, and knew that the AGH did not have the funding to move forward with those plans;

(d) Falconer knew that Curran knew that securing the Infrastructure Grant was far from certain and, even if awarded, would only provide $1 million – a far cry from the amount needed to move forward with the expansion;

(e) Curran never discussed with Falconer his expectation of the time TCA would need to spend on the Grant Application and for other services;

(f) Falconer's meeting with Curran on May 25, 2015 was to discuss the Grant Application. The meeting took place after business hours and for approximately 30 minutes. In the absence of any discussions usual to contract discussions – scope, deliverables, hourly rates, client consultation, feedback and approval, fees, etc., and in light of what was known to Curran and Falconer as of this date, it cannot reasonably be inferred that in as a result of her meeting with Curran, Falconer believed that she had bound the AGH to a contract of the nature and terms as alleged by the plaintiff;

(g) knowing the modest sum she was able to offer to TCA, Falconer suggested that Curran draw on the Lundholm work, which, she believed, would limit the work required of Curran. Curran confirmed to Falconer that he had contacted Lundholm, who had been very cooperative. Despite that, and without Falconer's knowledge, Curran proceeded to "work in a vacuum" and create a significant redesign of the Lundholm work - far beyond anything required for the Grant Application. In fact, the work prepared by TCA so deviated from the Lundholm work that the previous costing estimate could not be used to create a revised cost estimate for the TCA re-design;

(h) Falconer knew that Curran was liaising with Lord Cultural, who also understood that costs related to a grant application could not be paid from the grant, if awarded;

(i) from and after May 25, 2015, Curran never spoke to Falconer about how much time TCA had been spending and the amount that TCA might end up charging the AGH. Curran never discussed TCA's hourly rates or had any discussion with Falconer about how TCA's fees would be paid;

(j) Curran had no recollection of Falconer's response to his alleged offer to do the work beyond what was needed for the Grant Application for a fee substantially less than $150,000. Curran never confirmed his alleged belief that TCA had such a contract with the AGH. Curran's lack of memory of Falconer's response to an alleged agreement concerning payment, and his failure to confirm the terms of the agreement, are also circumstances that bear upon Curran's credibility and upon the plaintiff's allegations; and

(k) even after the work was completed, Curran's evidence does not support an inference that TCA believed that it had a contract with the AGH as alleged. Among other things, even when TCA finally delivered the December Invoice, it is described as "draft" and is accompanied by the Payment Proposal that contemplates a donation of one-third of the fee.

[121] The above analysis changes little even if the discussions between Falconer and Curran of May 25, 2015 are viewed in the reverse, i.e. if Curran is viewed as the party making the "offer". Based on my findings on the evidence, my conclusion would remain unchanged: neither the surrounding circumstances, nor the conduct of Falconer/the AGH, can support an inference that the AGH accepted a contract offered by the plaintiff as alleged.

[122] At the risk of belabouring the point, it is not reasonable to conclude that in the absence of any discussions of the contractual terms usual to a retainer of the kind asserted by TCA, that TCA believed it had a binding contract with the AGH as alleged.

Unjust enrichment/Quantum Meruit

[123] In the event that the court did not find that the parties had entered into a contract, the plaintiff asks the court to consider its claim on the basis of quantum meruit: AGH received a benefit from the plaintiff – the architectural work completed by TCA; the plaintiff suffered a corresponding detriment – the 375 hours TCA claims it spent to create a new expansion design for the AGH; and, in the absence of a contract, there was no juristic reason for TCA to perform the services.

[124] The plaintiff asserts that, in addition to using the TCA work for the Grant Application, the AGH has, or may have, used the TCA work for ongoing expansion plans. Accordingly, the AGH should pay TCA for its services on a quantum meruit basis. The plaintiff asserts that the AGH continued to work with Lord Cultural and in 2020 entered into a contract with a different architectural firm for the design of an expansion to the AGH and may have used the TCA design for that purpose.

[125] Falconer's evidence was that she had no knowledge of the TCA work being used for anything other than the Grant Application. Similarly, neither Lord Cultural witness had any knowledge of the TCA drawings provided to Lord Cultural being used after the Grant Application was submitted. Aside from his own suspicions, the plaintiff led no direct evidence to contradict this testimony.

[126] A comparison of the TCA drawings to the drawings prepared by the architects now retained by the AGH also fails to establish that the TCA ideas were used in the latter's work.

[127] I conclude that the plaintiff has not established that its work was used by or on behalf of the AGH for anything other than the Grant Application.

The Law

[128] Kerr v. Baranow, 2011 SCC 10, at para. 32, sets out the legal framework for unjust enrichment claims and provides that recovery may be permitted when the plaintiff can establish:

an enrichment of or benefit to the defendant;
a corresponding deprivation of the plaintiff; and
the absence of juristic reason for the enrichment.

[129] The first requirement, enrichment, requires the plaintiff to show that it gave something to the defendant that was received and retained by the defendant. The benefit may be positive or negative, the latter conferring a benefit on the defendant that spares the defendant and expense they would otherwise have to undertake (Kerr, at para. 38).

[130] To establish the second element - a corresponding deprivation - the plaintiff must establish not only that the defendant has gained a benefit or been enriched but also that the enrichment corresponds to a deprivation which the plaintiff has suffered.

[131] The third element requires the plaintiff to establish that the benefit and corresponding detriment must have occurred without a juristic reason. The Court explains that "this means that there is no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff, making its retention "unjust" in the circumstances of the case" (Kerr, at para 40). A juristic reason includes an intention to make a gift, or the existence of a contract.

[132] As set out above, I found the contract pursuant to which TCA agreed to provide services was as described by the defendant. That finding is sufficient to determine the plaintiff's claim.

[133] However, notwithstanding those findings, I have also considered the plaintiff's submissions that the AGH received work from TCA for which the AGH should be required to pay, using the following framework as set out in Summers (c.o.b. Classic Renovators and Contractors) v. Harrower, 2005 50261, (at para. 11):

The courts have found that five elements must be present in a claim based solely on quantum meruit, including that:

there was a contractual relationship between the parties;
the parties agreed that certain work was to be done but failed to agree on all aspects of the contract, for example, the price to be paid;
the defendant accepted the work;
both parties had or should have had in the circumstances an expectation that the work was not being rendered gratuitously; and
the payment sought was reasonable remuneration for the work done. Fairwood Industries Ltd. v. Lin (1997), 1997 4292 (BC SC), 33 C.L.R. (2d) 111 (B.C.S.C.) at 120

[134] Given the factual findings set out in these reasons, the second, third, and fourth, of the above five elements have not been met in this case.

[135] For the foregoing reasons, the plaintiff's alternate claim for payment on a quantum meruit basis cannot succeed.

Costs

[136] As the successful party, the defendant is presumptively entitled to its costs. The parties are encouraged to resolve the issue of costs. If they cannot agree, they may provide written costs submissions not to exceed three pages in length, exclusive of any Bill of Costs or Offer to Settle. The written submissions are to comply with the provisions of Rule 4.01 of the Rules of Civil Procedure[^2]. The submissions may be submitted using Caselines or by filing paper copies through the Trial Co-ordinator.

[137] Costs submissions from the defendant are to be served and filed within 14 days of the release of these reasons.

[138] The plaintiff's reply submissions are to be served and filed within 7 days of the delivery of the defendant's costs submissions.

[139] If no costs submissions are received within 21 days of the date of these reasons, costs will be deemed to be settled and I will make no further order.

Justice L. Sheard

Released: November 10, 2021

[^1]: Saint John, at page 622, citing Lord Blackburn in Smith v. Hughes (1871), L.R. 6 Q.B. 597 at 607 [^2]: R.R.O. 1990, Reg. 194

2021 ONSC 7430

Case Summary

Overview

Disposition

Background

AGH Expansion Plans

Meeting of May 25, 2015

Curran's Evidence

Falconer's Evidence

Events after the May 25, 2015 Meeting

Events on and after June 9, 2015

The Invoices

Analysis

The Law

Preliminary Issue: Rule in Browne v. Dunne

Formation of Contract

Implied Acceptance

Unjust enrichment/Quantum Meruit

The Law

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 1

Legal Tests 3

Legislation 3