Overview

[1] There were two motions before me: (1) Conseil des Écoles Catholiques du Centre-Est (“CECCE”) brought a motion to reinstate its appeal of an order of an associate judge, made in the context of a garnishment hearing. The appeal had been set down to be heard February 2021 but was struck by the registrar because a motion confirmation form had not been filed; and (2) OnPoint Group Ltd. brought a motion to strike the affidavit filed by CECCE in the garnishment hearing which resulted in the order CECCE is seeking to appeal. OnPoint also seeks judgment against CECCE for the amount in its notice of garnishment, $289,496.61. It also seeks costs.

Background

[2] The motions arise from a proceeding under the Construction Act, S.O. 2017, c. 24.

[3] OnPoint obtained judgment against Ty Corp. Construction in June 2020. It served a garnishment notice on CECCE in July 2020. It then brought a motion for a garnishment hearing. CECCE delivered a garnishee’s statement and an affidavit in response to the motion. OnPoint examined the deponent of CECCE’s affidavit, Luc Poulin. CECCE objected to 47 questions.

[4] OnPoint then brought a motion for judgment against CECCE, or, alternatively, an order that would require Mr. Poulin to re-attend to answer the questions to which there were objections. Associate Judge Kaufman dismissed OnPoint’s request for judgment but ordered CECCE to produce Mr. Poulin for a continued cross-examination, at its expense, to answer the questions to which there were objections and questions arising from the answers. The associate judge also ordered costs of $8,000.00 against CECCE.

[5] CECCE prepared an appeal of the associate judge’s order.

[6] The appeal was scheduled to be heard February 11, 2021, a Thursday. At almost 4:30 p.m. on February 10, 2021, the day before the appeal was to be heard, CECCE’s counsel were informed that the appeal had been struck due to their failure to file a motion confirmation form.

[7] CECCE’s counsel attempted to convince the registrar that the motion confirmation form had not been necessary, because it had scheduled an appeal and not a motion. The registrar disagreed.

[8] On February 16, 2021, OnPoint’s counsel wrote to CECCE’s counsel to say that because no order to reinstate the appeal had been sought, he would be seeking to examine Mr. Poulin in accordance with the associate judge’s order. A notice of examination was enclosed.

[9] A lawyer for CECCE wrote to OnPoint’s counsel the morning of February 17, 2021. She said that the court had advised that the appeal could be rescheduled on the motions list. She requested OnPoint’s counsel’s availability. She said no dates were available before April 8, 2021. She provided her firm’s available dates, which were in late May and June. She said that she would request simultaneous translation.

[10] OnPoint’s counsel responded the same morning, saying that the Rules require an order for the appeal to be reinstated, that he had not received a motion to reinstate the appeal and that he would be following the associate judge’s order. OnPoint’s counsel said the delay was not acceptable. He also took issue with the request for simultaneous translation.

[11] On February 19, 2021, CECCE’s counsel wrote to the motions coordinator to ask for the appeal to be re-scheduled. OnPoint’s counsel wrote its own letter to the motions coordinator on February 22, 2021, asking that the appeal not be re-scheduled.

[12] Mr. Poulin did not attend the scheduled cross-examination on February 23, 2021. OnPoint obtained a certificate of non-attendance.

[13] On March 1, 2021, CECCE’s counsel wrote to the court to request a reply to its February 19, 2021 letter. In its letter, CECCE’s counsel said that they were prepared to bring a motion, and would defer to the court with respect to whether such a motion was necessary. They said that a case conference would be another proposal.

[14] CECCE’s counsel followed up on its February 19, 2021 and March 1, 2021 correspondence by email dated March 9, 2021.

[15] On April 12, 2021, CECCE sent an email to the court, attaching its notice of motion to reinstate the appeal and requesting a hearing date. In the email, CECCE’s counsel noted that OnPoint had filed a motion in respect of the matter on March 26, 2021 and asked that the motions be heard together. (The notice of motion and supporting affidavit for OnPoint’s motion are both dated March 12, 2021.)

The issues

[16] The issues before me are the following:

(1) Should CECCE’s appeal of the associate judge’s order be reinstated?

(2) If the appeal is not reinstated, should the orders sought by OnPoint be granted?

Issue #1: Should CECCE’s appeal of the associate judge’s order be reinstated?

OnPoint’s position

[17] OnPoint made no submissions in respect of the merits of CECCE’s appeal.

[18] OnPoint acknowledges that the Rules of Civil Procedure, R.R.O. 1990, Reg.194, do not clearly require a motion confirmation form to be filed in an appeal. However, it argues that Rule 62, which deals with interlocutory appeals, makes references to Rule 37, which deals with motions, and that Rule 37.10(4) provides that if a motion confirmation form is not filed, the motion will be deemed to have been abandoned unless the court orders otherwise.

[19] OnPoint argues that CECCE consistently failed to comply with the Rules of Civil Procedure and is using its significant resources to delay paying a small contractor. For example, OnPoint says that CECCE: (1) failed to respond to its notice of garnishment before OnPoint brought its motion for a garnishment hearing; (2) objected to 47 out of 150 questions asked of Mr. Poulin; (3) filed its notice of appeal of the associate judge’s order four days late; (4) failed to file a motion confirmation form; (5) failed to bring a motion promptly after the appeal was struck; and (6) failed to produce Mr. Poulin in accordance with the notice of examination served by OnPoint after the appeal was struck.

[20] OnPoint also argues that CECCE failed to pay a holdback it owes to OnPoint and Ty Corp. and that it appears not to have required a labour and materials bond, which would have ensured that OnPoint was paid.

[21] OnPoint argues that the Construction Act is intended to provide for a summary procedure and that it has been prejudiced by CECCE’s foot-dragging and other conduct.

[22] OnPoint says it will be required to set down its action presently to preserve its lien and that it will be prejudiced because it will not be permitted to take certain steps in the litigation after the action is set down.

Analysis

[23] The parties agree that the Rules of Civil Procedure do not clearly require a motion confirmation form for an appeal of an interlocutory order of an associate judge.

[24] Other than the motion confirmation form, both parties had filed all materials required for the appeal. CECCE’s counsel say they were fully prepared to argue the appeal on February 11, 2021, before they learned the previous afternoon that it had been struck.

[25] In my view, particularly given that OnPoint has conceded that the Rules of Civil Procedure do not make it clear that a motion confirmation form is required for an appeal, OnPoint should have consented to the reinstatement of the appeal. OnPoint knew that CECCE intended to proceed with the appeal, that CECCE’s counsel had not believed that a motion confirmation form was required and that both parties were ready to argue the appeal. OnPoint knew that the appeal had been struck due to, at worst, inadvertence.

[26] OnPoint clearly was not content with the new dates CECCE’s counsel had proposed for the appeal, which were in May and June, however, OnPoint could have given its consent provided the appeal was heard on the first available date. It did not do so. Even if OnPoint had simply agreed to the dates CECCE’s counsel had proposed, the appeal would have been heard before the motions before me were heard.

[27] The merits of the appeal were not before me.

[28] OnPoint’s insistence on February 16, 2021 that Mr. Poulin be produced for cross-examination on February 23, 2021, and its attendance at the court reporter’s office to obtain a certificate of non-attendance, when it knew why the appeal had been struck and that CECCE was attempting to reschedule the appeal, were not a constructive response to its understandable frustration over the delay caused by the striking of the appeal.

[29] OnPoint argues that CECCE has not explained its delay in bringing a motion to reinstate the appeal. The evidence shows that as of March 9, 2021, CECCE’s counsel, with the knowledge of OnPoint’s counsel, were following up with the court’s administration to determine whether the appeal could be rescheduled without a motion. OnPoint’s motion materials are dated March 12, 2021. It appears they were filed March 26, 2021 (see Michel Doucet’s email of April 12, 2021 to the court.) CECCE sent its notice of motion to the court on April 12, 2021 and asked for it to be heard with OnPoint’s motion. While CECCE’s counsel certainly could have delivered a notice of motion earlier, the evidence shows that they had been told by the court (see Isabelle Hardy’s email of February 17, 2021 to Ronald S. Petersen) that the appeal could be rescheduled without a motion. OnPoint’s counsel had written to the court to object to CECCE’s attempts to reschedule the appeal without a motion. In these particular circumstances, and given the demands on the courts and their administrative staff at present, I do not consider CECCE’s attempt to reinstate the appeal without a motion to have been unreasonable and I consider any delay in serving a notice of motion to have been adequately explained.

[30] By not consenting to the reinstatement of the appeal in the circumstances, OnPoint was a contributor to any subsequent delay.

[31] For these reasons, the order requested by CECCE to reinstate the appeal is granted.

[32] I do wish to address OnPoint’s concern that its requirement to set down its action for trial imminently to preserve its lien will preclude it from conducting discoveries. Rule 48.04 provides that steps may be taken in an action after it is set down for trial with leave of the court. Under Rule 1.05, which provides that, when making an order under these rules the court may impose such terms and give such directions as are just, I make the following direction: Should any issues arise in respect of discovery rights relative to the timing of the action being set down which cannot be resolved on consent, either party may contact trial coordination to request a case conference before me to deal with this specific issue.

Issue #2: If the appeal is not reinstated, should the orders sought by OnPoint be granted?

[33] As I have ordered that the appeal is to be reinstated, it is not necessary for me to consider Issue #2.

Disposition

[34] I make the following orders:

(1) CECCE’s motion is granted; OnPoint’s motion is dismissed.

(2) CECCE’s appeal may be rescheduled by either party. The appeal shall be heard on an expedited basis. Trial coordination has been advised accordingly.

(3) Should any issues arise in respect of discovery rights relative to the timing of the action being set down, either party may contact trial coordination to request a case conference before me.

Costs

[35] Both parties have filed costs outlines. They may file brief written costs submissions to supplement their costs outlines. CECCE may file its submissions within 14 days. OnPoint may file its submissions within a further 14 days. The parties’ submissions shall consider whether the costs of these motions are appropriately decided at this time or whether the issue should be decided by the judge who hears the appeal.

Date: December 3, 2021

COURT FILE NO.: CV-19-82179

DATE: 20211203

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: OnPoint Group Ltd., Creditor

AND

Ty Corp. Construction, Debtor

AND

Conseil des Écoles Catholiques du Centre-Est, Garnishee

COUNSEL: Ronald S. Petersen, counsel for the Creditor

André Claude, Ronald F. Caza and Albert Brunet, counsel for the Garnishee

ENDORSEMENT

Madam Justice Heather J. Williams

Released: December 3, 2021

OnPoint Group Ltd. v. Ty Corp. Construction, 2021 ONSC 7950

Case Summary

Overview

Background

The issues

Issue #1: Should CECCE’s appeal of the associate judge’s order be reinstated?

OnPoint’s position

Analysis

Issue #2: If the appeal is not reinstated, should the orders sought by OnPoint be granted?

Disposition

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues