COURT FILE NO.: CV-21-670068
DATE: 2022 06 30
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c C.30, as amended
RE: INFINITE CONSTRUCTION DEVELOPMENT LTD., Plaintiff
- and -
YADONG CHEN, Defendant
BEFORE: Associate Justice Todd Robinson
COUNSEL: P. Starkman and C. Zhang, for the defendant (moving party)
C. Tan and R. He, for the plaintiff
HEARD: March 2, 2022 (by videoconference)
REASONS FOR DECISION
[1] Yadong Chen (“Chen”) moves for an order discharging the lien of Infinite Construction Development Ltd. (“Infinite”), vacating the registrations of its claims for lien and certificate of action, and dismissing this action. In the alternative, Chen seeks security for costs from Infinite on the basis that there is good reason to belief that it lacks sufficient assets in Ontario to satisfy Chen’s costs and that this action is frivolous and vexatious.
[2] In April 2019, Chen contracted with 10305391 Canada Inc. (“103 Canada”) to renovate his property on Clinton Street in Toronto. Work proceeded over the next two years. Chen was not in Canada throughout that time, so the work was coordinated through Will Zhang and Clark Cai, who had been Chen’s real estate agents for the purchase of the property.
[3] Infinite alleges that it, not 103 Canada, performed all of the work required under the renovation contract. Infinite claims that the contract was assigned to it by 103 Canada in July 2019 through an oral agreement between Infinite’s principal, Boxuan (Toby) Ma (“Ma”), and 103 Canada’s principal, Jixiao (Dylan) Xu. No written assignment agreement was executed until over two years later in September 2021, after Infinite had registered both of its claims for lien against the property.
[4] In this action, Infinite seeks not only to prove its lien, but also claims damages in breach of contract, unjust enrichment, quantum meruit, and breach of trust under the trust provisions of the Construction Act, RSO 1990, c C.30.
[5] Chen’s position on the motion is that Infinite’s claim has no merit. There is no contract between Chen and Infinite, Chen owes no money to Infinite, no notice of the alleged assignment was given to Chen prior to the liens being registered, Infinite’s lien rights had expired, and the lien claim is grossly exaggerated. Chen also asserts that Infinite has no assets in Ontario to satisfy a costs award.
[6] Infinite’s argues that Chen’s motion must fail because there are triable issues on the validity of Infinite’s claim and any exaggeration in its liens resulted from inadvertence not intention. Infinite also argues that an order for security for costs would be unjust in this case.
[7] I am granting Chen’s motion, in part. I am satisfied that there is no genuine issue requiring a trial on the validity of the alleged assignment of the renovation contract or whether Infinite is a “contractor” under the Construction Act. A trial is not required to find that the alleged equitable assignment is not supported, that Infinite does not meet the definition of “contractor”, and that its lien rights had already expired when it purported to preserve its lien. I am accordingly declaring Infinite’s lien expired, vacating the registrations of the claims for lien and certificate of action, and dismissing this action insofar as enforcing the lien.
[8] However, I am not dismissing the action in its entirety. Chen has not met his onus of demonstrating that there is no genuine issue for trial on all of the pleaded non-lien causes of action. Also, in my view, Chen has also not met his threshold onus of demonstrating good reason to believe that Infinite lacks sufficient assets in Ontario to satisfy a costs award, so I am not granting security for costs.
ANALYSIS
[9] Chen moves for discharge of Infinite’s lien and dismissal of this action under s. 47 of the Construction Act and, alternatively, for security for costs under subrules 56.01(1)(d) and (e) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”).
[10] Discharge of a lien may be ordered under the Construction Act on the basis that the claim for the lien is frivolous, vexatious or an abuse of process, or on any other proper ground: s. 47(1). Registration of a claim for lien or certificate or action may also be ordered vacated or an action dismissed on any proper ground: s. 47(1.1). An order made under s. 47 may include any terms or conditions that the court considers appropriate in the circumstances: s. 47(1.2).
[11] The focus for the primary relief on Chen’s motion – discharging Infinite’s liens and dismissing this action – is on whether there is a triable issue in respect to any of the bases on which Chen seeks discharge and dismissal: Maplequest (Vaughan) Developments. Inc. v. 2603774 Ontario Inc., 2020 ONSC 4308 (Div Ct) at para. 2. It follows that Chen, as the moving party, frames the bases on which discharge of the liens and dismissal of this action is assessed.
[12] The issues I must decide on this motion are as follows:
(a) What is the threshold for deciding a motion under s. 47 of the Construction Act?
(b) Is there any triable issue on validity of the assignment?
(c) Is there any triable issue on whether Infinite’s lien was preserved out of time?
(d) Is there any triable issue that Infinite’s lien is exaggerated and that its claims for lien were registered in bad faith?
(e) If determinations on the above are in favour of Chen, then do they support dismissal of the action in its entirety?
(f) Is there any triable issue on quantification of Infinite’s claim?
(g) Is there good reason to believe that Infinite lacks sufficient assets in Ontario to satisfy a costs award and that its claim is frivolous and vexatious and, if so, is an award of security for costs just?
Issue 1: What is the threshold for deciding a s. 47 motion?
[13] Infinite argues that I must dismiss Chen’s motion unless Chen demonstrates that it is patently obvious that Infinite cannot succeed. In my view, that is not the threshold for deciding a s. 47 motion.
[14] Infinite submits that my assessment should be made within the scope of principles outlined in GTA General Contractors Ltd. v. 2566213 Ontario Inc., 2019 ONSC 7370. In particular, three limitations on the court’s assessment on a s. 47 motion were identified in that case, namely (i) if a genuine issue of fact is determined, then the matter should be left to be determined by the trial judge, (ii) if it is not patently demonstrable that a party has no right to a lien, or unless the court is satisfied that the cause of action could not possibly succeed at trial, then the matter should be left to the trial judge, and (iii) credibility assessment, weighing the evidence and drawing of inferences are the function of the trial judge (para. 17).
[15] GTA General Contractors was released prior to the Divisional Court’s decisions in Maplequest and R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111 (Div Ct), both of which clarify the proper analysis for a s. 47 motion. Neither case discussed GTA General Contractors. The principles identified in that case and relied on by Infinite were not discussed by the Divisional Court as being applicable in all s. 47 motions. In my view, GTA General Contractors must be read in light of the Divisional Court’s subsequent decisions.
[16] I have previously considered both R&V Construction and Maplequest and reviewed the process for assessing a s. 47 discharge motion in GTA Restoration Group Inc. v. Baillie, 2020 ONSC 5190 at paras. 42-45, leave to appeal ref’d 2021 ONSC 1250 (Div Ct). Section 47 is broadly drafted and may be used in a variety of manners. Those include a process similar to summary judgment under Rule 20 of the Rules as well as in other manners that do not necessarily seek a summary disposition of a lien action on its merits.
[17] In my view, Infinite’s proposed reading of GTA General Contractors represents too rigid an approach to s. 47 motions, and one that is inconsistent with R&V Construction and Maplequest. Neither case supports a static approach to s. 47 motions where triable issues are engaged or a mandatory framework for assessing triable issues.
[18] In my view, the principles set out in GTA General Contractors remain applicable, but as guidance on appropriate considerations for s. 47 motions where discharge or dismissal is sought on the merits. There is no language in s. 47 limiting the court’s discretion to assess and decide what is “a proper ground” to discharge a lien or dismiss an action in the particular circumstances of a particular case. Nevertheless, in deciding a s. 47 motion, there are times when a genuine issue could be resolved on a motion, but it is nevertheless more fair, just, and appropriate in the circumstances for that issue to be decided at trial.
[19] Such a reading of GTA General Contractors is, in my view, consistent with the Divisional Court’s decisions. It is also consistent with the statutory mandate in s. 50(3) of the Construction Act that procedure in a lien action be as far as possible of a summary character, having regard to the amount and nature of the liens in question. It is further consistent with the Supreme Court of Canada’s acknowledgment in Hryniak v. Mauldin, 2014 SCC 7 (albeit in a summary judgment context) that there are cases where a trial is not actually required, even when there appears to be a genuine issue requiring a trial.
Issue 2: Is there any triable issue on validity of the assignment?
[20] Chen submits that he had no contract with Infinite and, further, that he was not aware and was given no notice of any alleged assignment of the renovation contract. Infinite does not argue that it directly entered into any contract with Chen. It relies on the oral assignment of the renovation contract by 103 Canada (subsequently committed to writing after Infinite’s claims for lien were registered) as establishing privity of contract with Chen. Infinite submits that it does not need to prove a valid assignment on this motion, and that there is more than enough evidence to support a triable issue on it.
[21] Infinite is correct that it need not prove a valid assignment at this juncture. However, that does not mean that Infinite has no evidentiary onus. In response to this motion, Infinite still had an obligation to tender cogent evidence supporting a viable argument for a valid assignment.
[22] I held in GTA Restoration that nothing in Maplequest or R&V Construction displaced prior, well-established case law requiring both sides on a s. 47 motion to put their best foot forward. In my view, the effect of the Divisional Court’s decisions was to clarify that such an evidentiary onus only arises where a s. 47 motion is used in a manner akin to Rule 20 of the Rules, limiting that onus solely to the issues on which discharge is sought: GTA Restoration, supra at paras. 45, 50-51 and 56.
[23] I remain of the same view. As already noted, lien actions are statutorily-mandated to be summary in nature: Construction Act, s. 50(3). In a motion under s. 47 to discharge a lien or dismiss a lien action on the merits, the court must be able to presume that the moving party has tendered its best evidence to support the bases on which discharge is sought, but also must be able to presume that the responding lien claimant has similarly done so. As I held in GTA Restoration, at para. 51, without a presumption that both parties have “led trump”, it would be too easy for a lien claimant plaintiff to resist legitimate discharge motions with arguments that further and better evidence may be available at trial, and similarly too easy for a defendant to bring discharge motions. Accordingly, although Chen bears the primary evidentiary onus as the moving party, both parties have a “best foot forward” obligation. That is a factor in this particular motion.
[24] Chen’s affidavit and cross-examination evidence are consistent that his contract was with 103 Canada, that he had no knowledge of the alleged assignment, and that he understood Infinite to be a subcontractor to 103 Canada. Chen advances three main arguments in support of his position that there is no genuine issue for trial on a valid assignment:
(a) the alleged assignment is not pleaded;
(b) the alleged assignment agreement violates s. 4 of the Statute of Frauds, RSO 1990, c S.19, which requires that agreements relating to an interest in land be in writing; and
(c) the alleged assignment contravenes the legal requirements of s. 53(1) of the Conveyancing and Law of Property Act, RSO 1990, c C.34, which requires that the assignment be in writing and that written notice of the assignment be given to Chen.
[25] On the first argument, I agree with Chen that Infinite’s assignment argument is not supported by the statement of claim. Infinite’s statement of claim pleads an agency relationship with 103 Canada, not assignment. In particular, Infinite pleads the following at paras. 5 and 7 of the statement of claim:
In or about July 2019, 103 Inc. appointed Infinite Construction as its agent and representative to complete the Project Contract with the consent from the Owner. Infinite Construction thereby became the contractor to carry out the Project pursuant to the Project Contract.
In September 2021, 103 Inc. also authorized Infinite Construction to take legal actions against, and receive payments from, the Owner in respect of 329 Clinton, the Project and the Project Contract.
[26] Issues in an action are framed by the pleadings and lawsuits must be decided within the boundaries of those pleadings: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 OR (3d) 74; [2002] OJ No 1365 (CA) at para 60.
[27] Infinite does not plead an assignment. It pleads that it is an authorized agent and representative of 103 Canada. Infinite is not pursuing this claim on behalf of 103 Canada, though. It is pursuing it on its own behalf. Both in Infinite’s factum and oral submissions, Infinite’s position is that there has been an absolute assignment of the renovation contract and that 103 Canada has fully assigned its interests in the renovation contract to Infinite. That position is inconsistent with Infinite’s pleading in the statement of claim.
[28] Although not argued, I note also that Infinite has not complied with subrule 5.03(3) of the Rules. Since Infinite is pursuing an assigned claim, that subrule 5.03(3) requires that the assignor be joined as a party unless the assignment is absolute and written notice of assignment has been given to the person liable for the assigned debt or chose in action. The Rules apply to lien actions except where inconsistent with the Construction Act and its procedures: Construction Act, s. 50(2).
[29] On the second argument, I am not convinced that the alleged oral assignment of the renovation contract is an agreement dealing with an interest in or concerning lands, such that s. 4 of the Statute of Frauds applies. However, given my determinations on Chen’s other arguments, I need not delve into this one.
[30] On the third argument, Infinite concedes that the alleged assignment is not a legal assignment. Rather, it argues that it is an equitable assignment. Infinite submits that the Court of Appeal has confirmed that equity does not require a particular form to effect a valid assignment, but the form used must clearly show an intention that the assignee is to have the benefit of the debt or chose in action assigned: Nadeau v. Caparelli, 2016 ONCA 730 at para. 19.
[31] For this motion, I must be satisfied that there is a triable issue that the purported oral discussions between Ma and 103 Canada’s principal, Jixiao Xu, and the ultimate agreement they allegedly reached, clearly showed an intention for 103 Canada to assign the renovation contract to Infinite. In my view, the evidence before me does not support any such triable issue.
[32] As noted, Chen’s evidence supports that he had no knowledge of any transfer or assignment of the renovation contract until after the Infinite’s claims for lien were registered. His evidence is that he was unaware of Infinite’s role until late August 2022, after Infinite had registered its first claim for lien. Ma admits that he had no direct dealings with Chen until then. At that time, Ma asserted that he was the general contractor.
[33] Since Chen was unaware of the assignment, the circumstances and scope of the alleged assignment are solely within the knowledge of Infinite and the “best foot forward” evidentiary obligation is important. Although Infinite need not prove that there was, in fact, an equitable assignment, it was nevertheless incumbent on Infinite to tender evidence supporting that there is a genuine issue requiring a trial on validly of the alleged equitable assignment.
[34] Infinite’s evidence on the assignment is sparse. Ma’s responding affidavit notably does not use the term “assignment”. He characterizes Infinite’s role as 103 Canada’s “agent and representative” to complete the renovation contract. The balance of his affidavit deals with communications with Will Zhang and Clark Cai (who Infinite alleges acted as agents of Chen) and progress of the work.
[35] Evidence before me supports that Chen immediately challenged Infinite’s role when Ma asserted that Infinite was the general contractor. In his responding affidavit, Ma appends a WeChat message exchange between him and Chen on August 27, 2021. In that exchange, Ma advised Chen that he had signed a contract with 103 Canada. When asked by Chen to let him view the contract, Ma responded, “I’ll have to look for it.”
[36] Chen again challenged Ma’s position that Infinite was the general contractor in an email dated September 17, 2022, in which he requested immediate disclosure of the agreement with 103 Canada. In response, Ma wrote to Chen and appended a photograph of a document entitled, “Representation Agreement”, which showed only a preamble and the digital signatures of representatives of 103 Canada and Infinite. Two pieces of paper covered most of the document, including the terms and space immediately below the signatures. The only visible portion states as follows [sic]:
This is a representation agreement between 10305391 Canada Inc. and Infinite Construction Development Ltd.
10305391 Canada Inc. Authorize Infinite Construction Development Ltd as the representation party on all the construction matters and legal matters regarding the project at 329 Clinton Street. Toronto ON. With the following details:
[37] A complete copy of the “Representation Agreement” was not included in Ma’s responding affidavit. Ma’s sole affidavit evidence on the transfer of the renovation contract is at para. 17 of his affidavit, which states as follows:
- In mid-July 2019, 103 Inc. appointed the Plaintiff Corporation as its agent and representative to complete the Project Contract. From that point on, Infinite Construction acted as the general contractor with regard to the Project and the Project Contract, and dealt almost exclusively with the Project as the general contractor. During the Project, the Chen Agents are responsible for the communication between Chen and the Plaintiff Corporation.
[38] The characterization of Infinite as 103 Canada’s “agent and representative” is consistent with the visible portion of the “Representation Agreement” and the allegation in the statement of claim.
[39] During cross-examination, Mr. Ma gave evidence that the director of 103 Canada, Jixiao Xu, had verbally agreed with him to transfer the contract to Infinite before the construction began, after which Infinite acted as the general contractor. He explained that Mr. Xu “transferred all of the contract to me with the full amount for everything.” Mr. Ma gave further evidence that he thought Chen, Will Zhang, and Clark Cai were aware of the transfer, although he also confirmed that he had not provided any notice to Chen about it.
[40] Despite its clear relevance, a request for production of the complete “Representation Agreement” was taken under advisement. It was ultimately produced with answers to undertakings. That complete document does use language more consistent with assignment, namely:
(a) describing the document as “a written construction project transfer assignment” previously verbally agreed in July 2019;
(b) describing that 103 Canada “transferred the entire renovation contract” to Infinite;
(c) confirming that Infinite is “the one and only party that 10305391 Canada Ltd. assigned to take over this renovation contract”; and
(d) confirming that Infinite “is the one and only assignee of 103055391 Canada Inc. regarding the construction project”.
[41] However, the document was e-signed on September 16, 2021, some three weeks after Ma had already told Chen there was a contract that he would need to look for. It was evidently not prepared and signed until after Ma’s direct communication with Chen about Infinite’s role on the project, which was refuted by Chen, and one day prior to Chen’s formal email. When providing Chen a photograph of the “Representation Agreement”, its terms and the date of execution were intentionally covered with pieces of blank paper.
[42] Significantly, Infinite’s evidence on the circumstances of the alleged assignment is quite limited. Ma’s affidavit is silent on them. The only evidence on the reasons for the assignment appears to be the statement in the “Representation Agreement” that 103 Canada lacked sufficient labour or availability to complete the work. Infinite has put forward no explanation for the delay between the alleged oral assignment in June 2019 and signing the written document in September 2021, which was only signed after Infinite had registered both of its claims for lien and Chen was challenging Infinite’s claimed role on the project.
[43] Based on Infinite’s position on this motion, validity of the alleged equitable assignment is central to the claim. As discussed above, and as set out by the Court of Appeal, demonstrating an equitable assignment here requires evidence of a form of assignment that shows a clear intention that Infinite was to have the benefit of the renovation contract purportedly assigned by 103 Canada. However, no evidence has been tendered corroborating Ma’s self-serving evidence that there was an oral agreement in July 2019.
[44] Infinite argues that there is a triable issue on the intention to assign without any evidence from the assignor. There is no affidavit from Jixiao Xu. There are no emails or text messages with Mr. Xu or any other representative of 103 Canada. There is no contemporaneous document or communication supporting that 103 Canada had, in fact, assigned the renovation contract to Infinite.
[45] Apart from Ma’s self-serving evidence that 103 Canada intended to transfer the contract, the executed “Representation Agreement” (signed over two years after the assignment allegedly occurred) is the only evidence supporting any intention to assign. However, and significantly, there is no evidence authenticating the e-signature of the 103 Canada’s principal, Jixiao Xu, on that agreement. Ma did not give any evidence in his affidavit confirming that it was Mr. Xu’s e-signature and I was directed to nothing in Ma’s cross-examination confirming that Mr. Xu was the person who signed the document. I am essentially being asked to infer that it is arguably Mr. Xu’s e-signature because it says so. That is hardly a best foot forward position.
[46] During Chen’s cross-examination, Infinite was unable to obtain any admissions from Chen supporting its position on assignment. Chen did confirm that he was aware that Infinite was working on site. However, he also confirmed that he understood 103 Canada was his general contractor doing the work and that Will Zhang and Clark Cai had confirmed to him that Infinite was a subcontractor.
[47] Will Zhang and Clark Cai are alleged by Infinite to have knowledge of its role on the project. Neither Chen nor Infinite tendered evidence from Mr. Zhang or Mr. Cai by affidavit or examination. Although Chen’s position is that Will Zhang and Clark Cai were agents for 103 Canada, Infinite’s position is that they were agents of Chen. I agree with Infinite that there is a triable issue on the record before me whether Mr. Zhang and Mr. Cai were acting as agents for Chen or, as Chen argues, as agents for 103 Canada.
[48] Regardless, there is no evidence suggesting that they have any direct knowledge of 103 Canada’s intentions. Nothing before me supports that either Mr. Zhang or Mr. Cai were aware of, let alone approved (as Infinite alleges), the assignment of the renovation contract from 103 Canada to Infinite. The record for this motion supports only that they were dealing with Infinite on site and potentially directing that extra work be done. That does not itself support that any knowledge of the specific relationship between 103 Canada and Infinite.
[49] I also do not accept Infinite’s argument that I should find a triable issue based essentially on an inference that either or both of Mr. Zhang or Mr. Cai were aware of the assignment and approved or acquiesced to it on Chen’s behalf. In my view, Ma’s evidence on his dealings with Will Zhang and Clark Cai and the various meeting minutes alleged by Ma to have been written by Mr. Zhang that refer to Ma as “contractor” support no more than an inference that Mr. Zhang or Mr. Cai had knowledge of the assignment. The evidence does not speak directly to the alleged assignment and, in my view, is too weak an evidentiary foundation to support a triable issue on alleged assent or acquiescence.
[50] Chen’s evidence is that he continued to make payments to 103 Canada throughout the project. That evidence is supported by cheques payable to and cashed by 103 Canada between October 2019 and February 2021, the period in which Infinite claims to have been solely responsible for the project. During that same period, 103 Canada produced at least one invoice to Chen on September 24, 2020. Infinite’s own invoice to Chen indicates that it was payable to either Infinite or 103 Canada. Infinite has provided no cogent explanation for why 103 Canada continued to invoice Chen and why 103 Canada was receiving payments from Chen if it was no longer the general contractor.
[51] Simply put, even ignoring the pleadings issue, the significant omissions in Infinite’s responding evidence make it difficult to find a triable issue on validity of an equitable assignment, particularly in circumstances where Chen was admittedly given no notice.
[52] The evidence from Chen supports that there is no triable issue on legal assignment of the renovation contract. It was incumbent on Infinite to tender cogent evidence supporting a triable issue on the merits of its claim that there was an equitable assignment. Its evidence falls short of doing so. I thereby find no triable issue on whether there was a valid equitable assignment. There was not.
Issue 3: Was Infinite’s lien preserved out of time?
[53] Expiry of lien rights is governed by s. 31 of the Construction Act. That section distinguishes between the lien of a “contractor”, the lien of a trustee of a workers’ trust fund (not relevant here), and the lien of “any other person”. In a project such as this one, where there is no certification or declaration of substantial performance, the lien of a “contractor” expires 60 days after the earlier of the date on which the contract is completed and the date on which the contract is abandoned or terminated: s. 31(2)(b). The lien of “any other person” expires 60 days after the earlier of the date of last supply of services and materials, the date on which the prime contract is completed, abandoned, or terminated, and the date on which the subcontract under which the services and materials were supplied is certified as complete: s. 31(3)(b).
[54] “Contractor” is defined in s. 1(1) of the Construction Act as “a person contracting with or employed directly by the owner or an agent of the owner to supply services or materials to an improvement”. “Subcontractor” is defined as “a person not contracting with or employed directly by the owner or an agent of the owner but who supplies services or materials to the improvement under an agreement with the contractor or under the contractor with another subcontractor”. In simple terms, a “contractor” has a direct contractual relationship with the owner and a “subcontractor” is further down the construction pyramid, having a direct contractual relationship with only the contractor or another subcontractor.
[55] Whether Infinite is a “contractor” or a “subcontractor” under the Construction Act bears directly on whether its lien rights had expired by the time the claims for lien were registered. If Infinite is a “subcontractor”, and its last supply was more than 60 days before the claims for lien were registered, its lien was preserved out of time. If a “contractor”, then there is a triable issue on timeliness of its lien. I am satisfied that the renovation contract was not completed, that there is no clear evidence of abandonment, and that there is a triable issue on whether the contract was, in fact, terminated in April 2021, as alleged by Chen, or in September 2021, as alleged by Infinite.
[56] Infinite relies on two arguments in support of its position that there is a triable issue on whether it is a “contractor”: (i) the equitable assignment of the renovation contract between Chen and 103 Canada, and (ii) Infinite’s factual role in the project, which is argued to supports that Infinite, not 103 Canada, was the general contractor. I have already determined there is no genuine issue requiring a trial on validity of the assignment, so I need only deal with the second argument.
[57] I am not convinced that any factual indicia of Infinite’s role as general contractor is relevant in this case. Being the de facto general contractor is not pertinent to the definitions of “contractor” and “subcontractor” under the Construction Act. Both definitions specifically rely on contractual relationships in the construction pyramid.
[58] Infinite relies on the decision in Centrum Renovations & Repair Inc. v. Ditta, 2006 CanLII 39082 (Ont SCJ), in which the court looked specifically at the role of the plaintiff in assessing whether it met the definition of “contractor” (para. 6-7). However, that case is distinguishable. There was no dispute that the plaintiff in that case had been engaged by the defendant owner to “assist in the realization” of the project and that there had been negotiations about the construction involving the plaintiff and the defendants (para. 2). The decision expressly observes that the exact terms of the relationship between the plaintiff and the defendants was one of the issues requiring resolution, since there was nothing in writing defining it (para. 2). Also, part of the factual evidence supporting that the plaintiff had been retained by the owner to act as a general contractor included the historic relationship between those parties on other projects (para. 6(i)).
[59] The factual circumstances of this case are different. Infinite does not have the same level of front-end involvement in the project as appears to have been the case for the plaintiff in Centrum. There is also no prior relationship between Infinite and Chen, or between Infinite and Will Zhang or Clark Cai. As already noted, there is no evidence supporting that the alleged assignment of the renovation contract from 103 Canada to Infinite was every discussed with or known to Will Zhang, Clark Cai, or Chen before the claims for lien were registered.
[60] Nothing in the Construction Act prevents a general contractor, who has been contracted by the owner, from subcontracting with a second general contractor to perform the full scope of the first general contractor’s work. Practically, the first general contractor would cease to have any “boots on the ground” role on the project, since the second general contractor would be doing all of the work. That functional role of the second general contractor would demonstrate all the indicia of a typical general contractor, and it could even be the “constructor” with the Ministry of Labour for the purposes of the Occupational Health and Safety Act, RSO 1990, c O.1. Legally, though, absent a contract with the owner (or an agent of the owner), the second general contractor would still fall within the definition of a “subcontractor” under the Construction Act. Its services and materials would be supplied under an agreement with the first general contractor.
[61] As acknowledged by Infinite in its submissions, a contract with the owner (or an agent of the owner) is required to meet the definition of “contractor”. Apart from the assignment, Infinite has not pleaded and does not allege any direct contract with Chen or any agent on behalf of Chen. Since I have found that the alleged assignment is not valid, Infinite accordingly does not meet the definition of “contractor”. Infinite’s lien rights were thereby subject to s. 31(3)(b) of the Construction Act.
[62] Infinite’s two claims for lien were registered on August 4 and September 13, 2021. The only evidence of work performed by Infinite within the 60 days prior to registration of either claim for lien is window work and removal of raccoons in July 2021 and an attendance on September 18, 2021 “to verify the purported ‘deficiencies’ alleged in Chen’s notice” (as stated in Ma’s affidavit). Infinite also argues that evidence supports doors being installed in September 2021.
[63] With respect to the work in July 2021, I have been provided with no authority or cogent argument supporting that pest control is a lienable service. Ma himself describes the other July 2021 work as “inspected and fixed a new window, and some other issues.” During cross-examination, Ma confirmed that the window being discussed had been previously installed by Infinite and that work was required to fix and reinstall that window due to a problem. Ma specifically confirmed that it was remedial work. Deficiency remediation does not extend lien rights: Demasi Contracting Inc. and AMT Group Inc., 2013 ONSC 5555 (Master) at para 23.
[64] I have been directed to Ma’s handwritten notes dated July 19, 2021, said to be from a site meeting. It indicates that new window installation is finished. However, this entry is not explained in Ma’s evidence and no date for completion of the windows is noted. Infinite argues that windows are not mentioned in Ma’s notes on June 25, 2021 and a packing slip dated July 7, 2021 for a single window was produced in answer to undertakings, supporting an inference that window installation work was completed between July 7, 2021 and July 19, 2021. I do not find that appropriate to infer. Ma has given no direct evidence on the argued timing of window installation and the inference is thereby based solely on a hearsay use of documents. That is not sufficient to support a triable issue.
[65] With respect to the work performed on September 18, 2021, Ma’s evidence on cross-examination was that his labourers were doing work, but he specifically characterized that work as being in response to an email from Chen outlining deficiencies. Nothing supports that new contract work was being performed. As already noted, deficiency remediation does not extend lien rights.
[66] With respect to supply and installation of doors in September 2021, Ma has given no direct evidence supporting it. Infinite again relies on inferences from documents produced in answer to undertakings, tendered without context. That is not sufficient to support a triable issue.
[67] Infinite ought to have appreciated that, in responding to this motion, it would be significant to demonstrate supply of lienable work within the 60-day period prior to registering its claims for lien. It had an obligation to put its best foot forward. Limited evidence has been tendered by Infinite. I have been pointed to photographs, packing slips, notes, and invoices that Infinite tenders for the truth of their contents. In my view, inferences based on hearsay is insufficient to create triable issues. Ma was capable of giving specific evidence on the scope and nature of work performed between June and September 2021, which is solely within Infinite’s knowledge. He did not. Instead, he tendered only general evidence.
[68] For these reasons, I am satisfied that there is no triable issue over whether Infinite supplied any lienable services and materials within 60 days prior to registering its first claim for lien. On the record before me, it did not. Infinite’s lien rights had thereby already expired when its claims for lien were registered.
Issue 4: Is Infinite’s lien exaggerated and were its claims for lien registered in bad faith?
[69] Given my finding that Infinite’s lien rights had expired, I need not consider whether the liens are exaggerated or registered in bad faith. However, in the event I am wrong in my determinations above, I have considered Chen’s arguments.
[70] Chen argues that a discharge order is further supported by Infinite’s liens being registered for grossly exaggerated amounts and in bad faith. In particular, Chen points to the fact that each of the two claims for lien identifies $1,185,000 in the “Consideration” field, notwithstanding that Infinite is only pursuing a claim for $155,894. Chen points to my decision in GTA Restoration, in which I held that wilful exaggeration of a lien may be a basis for determining that a lien is an abuse of process under s. 47: GTA Restoration, supra at para. 62.
[71] I find no basis to hold that Infinite’s registered claims for lien are an abuse of process.
[72] In my view, Chen has placed too much focus on the “Consideration” field of the registered claims for lien, without regard to the “Statements” section. They are distinct. The “Consideration” field is not part of the prescribed form for a claim for lien (i.e., Form 12 under the Construction Act). The requirements of that form are reproduced in the “Statements” section of a registered claim for lien. The “Consideration” field is something generated by Teraview. It is not determinative of the amount claimed for a lien.
[73] The prescribed form requires that a lien claimant identify the “Amount claimed owing in respect of services and materials that have been supplied”. That amount is the quantum of the claimed lien. Chen is correct that Infinite did identify $1,185,000 in the “Consideration” field for both registered claims for lien. However, the “Statements” sections confirm that the liens are claimed in the respective amounts of $47,800.00 and “$185,000.00 remained balance, plus $48,000.00 which is behind schedule” (seemingly duplicating the first claim for lien).
[74] I accept Ma’s evidence that the higher figure in the “Consideration” field was an error flowing from misunderstanding that the purchase price for the property should be listed, rather than the price of work supplied. Although the effect of the “Consideration” error is that Infinite’s liens appear on title to be for a much greater amount then they actually are, in my view, the material portion of the claims for lien reflects an amount closer to the amount now sought by Infinite in this action.
[75] Chen is incorrect that if he had moved to vacate the liens, he would have been required to post security for each lien based on the $1,185,000 amount. Both liens were actually only preserved for the amounts claimed as owing in the “Statements” section. A vacating motion may have needed to be brought on notice given the discrepancy, or with Infinite’s consent or confirmation that it did not oppose, but Infinite’s position on this motion supports that the result would have been the same.
[76] I accordingly would not have discharged Infinite’s lien as an abuse of process by exaggeration or registration in bad faith. However, I would have confirmed reduction in Infinite’s lien to $155,894, which is the extent to which its lien has been perfected.
Issue 5: Should the action be dismissed in its entirety?
[77] In addition to seeking an order discharging Infinite’s lien, Chen seeks an order dismissing this action. Infinite’s action, though, is not limited to the lien remedy. Infinite also claims damages for breach of contract, unjust enrichment, quantum meruit, and breach of trust.
[78] My findings support a dismissal of the action insofar as the lien remedy. Neither Chen nor Infinite advanced any argument on whether Infinite’s non-lien claims (namely breach of contract, unjust enrichment, quantum meruit, and breach of trust) may still be pursued if I were to find no triable issue on the validity of the assignment and on whether Infinite is a “contractor”. Nevertheless, it flows from my findings that Infinite has no contract with Chen and is not a “contractor” that Infinite’s claims for breach of contract and breach of trust must fail.
[79] With respect to breach of contract, I have found no genuine issue requiring a trial over whether there was any contract (assigned or otherwise) between Infinite and Chen. Infinite thereby has no privity of contract with Chen and cannot be entitled to relief against Chen for breach of contract.
[80] With respect to breach of trust, there is currently conflicting law on whether a breach of trust claim may now be joined in a lien action under the Construction Act, but I need not address that. Infinite pleads a claim in breach of trust pursuant to s. 7(1) of the Construction Act, which deems that all amounts received by an owner to finance an improvement constitute a trust fund. The sole beneficiary of the owner’s trust under s. 7(1) is “the contractor.” Since I have found that Infinite is not a “contractor”, it has no statutory claim against Chen for breach of trust.
[81] With respect to unjust enrichment and quantum meruit, no case law was put before me supporting that those causes of action cannot be maintained by Infinite. I am aware of case law that may support Chen in seeking a dismissal of that relief, but Chen had the onus of demonstrating that there is no triable issue on them. Since Chen has not advanced an argument for why those claims cannot proceed, I am not prepared to dismiss them. I am, however, exercising my discretion under s. 47(1.2) of the Construction Act to order that this action continue as a regular action governed by the Rules. Since I am discharging the lien, this action does not properly continue as an action governed by the procedures under the Construction Act.
Issue 6: Is there a genuine issue on Infinite’s claim quantification?
[82] Chen argues that Infinite has failed to produce any “intelligible evidence” regarding the quantum of its claim. However, Infinite does not have to prove its claim on this motion. It must only raise a triable issue on quantification. I am satisfied that the evidence submitted by Infinite on its work performed, with supporting subtrade and supplier invoices, is sufficient to support a triable issue on claim quantification.
Issue 7: Should security for costs be ordered?
[83] Since I am not dismissing the action, I must consider Chen’s request for security for costs in the amount of $75,702 on a partial indemnity basis.
[84] Chen relies on subrules 56.01(1)(d) of the Rules, which provides that an order for security for costs “as is just” may be made where it appears that the plaintiff is a corporation and there is good reason to believe that the plaintiff has insufficient assets in Ontario to pay the costs of the defendant. Chen also relies on subrule 56.01(1)(e), which provides that an order for security for costs may be made where it appears there is good reason to believe that the action is frivolous and vexatious and that the plaintiff has insufficient assets in Ontario to pay the costs of the defendant or respondent.
[85] Chen bears the initial evidentiary burden of satisfying me that it “appears” that there is “good reason to believe” that Infinite has insufficient assets in Ontario to pay Chen’s costs and, in the case of relief under subrule 56.01(1)(e), that the action is frivolous and vexatious. If Chen satisfies his initial onus, then the onus shifts to Infinite to demonstrate that an order for security for costs would be unjust.
[86] The Court of Appeal has confirmed that determining the justness of a security for costs order requires a holistic approach, in which all the circumstances of the case are examined. My assessment is to be guided by the overriding interests of justice. Various factors have been outlined by courts to be considered, such as merits of the claim, delay in bringing the motion, the impact of a defendant’s conduct on the available assets of the plaintiff, access to justice concerns, and the public importance of the litigation. However, those factors are not static. Each case must be considered and decided on its own facts: Yaiguaje v. Chevron Corporation, 2017 ONCA 827 at paras. 22-25.
[87] Notwithstanding that I am ordering this proceeding to continue as an action governed by the Rules, this motion was brought in a lien action. “Consent” of the court is thereby required for this motion under s. 67(2) of the Construction Act, which requires Chen to demonstrate that the motion is necessary or would expedite the resolution of matters in dispute. A security for costs motion will be necessary when the moving party meets its threshold onus: Yuanda Canada Enterprises Ltd. v Pier 27 Toronto Inc., 2017 ONSC 1892 (Master) at para. 14.
[88] Chen’s argument for security for costs is, essentially, that Infinite has failed to produce sufficient or meaningful evidence of its assets. Chen has tendered no independent evidence on Infinite’s apparent assets beyond Infinite’s own redacted, unaudited financial statement from 2020. That was provided by Infinite’s lawyer in response to a request from Chen’s lawyer for evidence of assets in Ontario. Chen’s lawyer’s then sent another letter requesting further information and documentation, which Infinite did not provide.
[89] The financial statement includes an unredacted balance sheet. It discloses equipment valued at $248,136 in 2020 (the purchase of which is supported by other documents) as well as $4,979 in cash on hand and a loan receivable for $100,000, which answers to undertakings support was advanced on December 8, 2020 and repaid shortly thereafter on January 12, 2021. In my view, Chen mischaracterizes Ma’s cross-examination evidence on the $100,000 loan as confirming it is a loan from Chen, which on close review is not what Ma said.
[90] Chen argues that the equipment cannot be considered an appropriate asset to address costs, because it is not readily exigible and there are no details of the assets, including no information on appraised values of the equipment or prior encumbrances of creditors who may have a security interest in them. Chen also points to Infinite’s corporate notice of assessment for 2020, which was produced by Infinite after the cross-examination. It indicates that Infinite paid no federal tax in 2020, which Chen argues supports that it reported no income. However, failing to report income is not the same as having no income.
[91] Chen elected to conduct no independent searches on Infinite’s assets and liabilities, such as registrations under the Personal Property Security Act, RSO 1990, c P.10 or execution searches. He has made no effort to tender any evidence on Infinite’s financial status beyond what Infinite willingly produced. Chen has the threshold onus, not Infinite. Chen is the party who must tender evidence supporting good reason to believe that Infinite lacks sufficient assets in Ontario to satisfy a costs award. In my view, it cannot point to issues with Infinite’s limited, voluntary disclosure as the sole basis to support security for costs. Infinite has no evidentiary onus until and unless Chen meets his threshold onus.
[92] On the limited record before me, I am not satisfied that there is good reason to believe that Infinite lacks sufficient assets in Ontario to satisfy a costs award. That being the case, I need not address the parties’ arguments on whether the action is frivolous and vexatious and the justness of a security for costs order. Chen has not met his threshold onus, so the motion for security for costs fails on that basis alone.
Disposition
[93] For the foregoing reasons, I order as follows:
(a) Infinite’s lien is hereby declared expired.
(b) The following instruments are hereby vacated from title to the property:
(i) Infinite’s claim for lien, registered on August 4, 2021 as instrument no. AT5820432; and
(ii) Infinite’s claim for lien, registered on September 13, 2021 as instrument no. AT5857225; and
(iii) Infinite’s certificate of action, registered on October 12, 2021 as instrument no. AT5881921.
(c) This action is hereby dismissed insofar as enforcement of Infinite’s lien, as well as Infinite’s claims in breach of contract and breach of trust. The balance of the action shall hereafter proceed as a regular action governed by the Rules of Civil Procedure and shall no longer be governed by the procedures in the Construction Act.
(d) The balance of Chen’s motion is dismissed.
(e) This order is effective without further formality.
Costs
[94] Costs outlines have already been exchanged and submitted. I encourage the parties to agree on costs of this motion. If they cannot agree, then written costs submissions shall be exchanged. Chen shall serve any costs submissions by July 14, 2022. The plaintiffs shall serve their responding costs submissions by July 28, 2022. There shall be no reply submissions absent leave of the court. Costs submissions shall not exceed five (5) pages, excluding any offers to settle and case law, and shall be submitted by email directly to my Assistant Trial Coordinator, Christine Meditskos, with proof of service.
[95] Unless costs submissions are exchanged and filed in accordance with the above, the parties shall be deemed to have agreed on costs.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: June 30, 2022