SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GFL Environmental Inc., Plaintiff/Moving Party
AND:
Peras Construction Inc., Defendant/Responding Party
BEFORE: JUSTICE L. SHEARD
COUNSEL: Brent Murphy for the Plaintiff/Moving Party
John Cintosun, for the Defendant/Responding Party
HEARD: January 19, 2022, by ZOOM Videoconference
REASONS FOR DECISION ON MOTION
Overview
1The plaintiff, GFL Environmental Inc. (“GFL”), moves for summary judgment against the defendant, Peras Construction Inc. (“Peras”), in the amount of $113,870.46, which is the balance owing on GFL’s invoice dated October 10, 2019 to Peras, Invoice #DV0000004123 (“Inv. 4123”).
2GFL asserts that it entered into a contract with Peras to remove soil from Peras’s project site at 396 Atwell Dr., Etobicoke, Ontario (the “Property”). GFL says the contract entitled GFL to charge $70 for each metric tonne of soil removed.
3Peras disputes the rate that GFL was entitled to charge for removing the soil.
4Peras does not dispute the amount of soil that was removed by GFL. Nor is Peras in a position to dispute that the soil removed by GFL could not be treated and had to be transferred to a landfill site.
Disposition
5As explained below, judgment is granted to GFL in the principal amount of $113,870.46, together with prejudgment interest on that sum calculated at the rate of 24% per year from November 10, 2019 to the date of judgment and post-judgment interest at that rate to the date of payment.
The Evidence
6The following evidence is undisputed:
(1) GFL determines whether soil is treatable: C+ soil, or non-treatable: T-soil, which is suitable only for transfer to a landfill;
(2) GFL charges a lower rate to dispose of C+ soil than it charges for T-soil;
(3) GFL removed a total of 8,928.82 tonnes of soil from the Property;
(4) the Property was the site of a former garbage dump;
(5) the only evidence as to whether the soil that was removed was C+ soil or T-soil comes from GFL;
(6) GFL determined that all 8,928.82 tonnes of soil removed was T-soil on the basis that even though the soil had been (chemically) tested as C+ soil, it was laden with garbage, thus rendering it T-soil.
7At the heart of the dispute is whether the parties agreed on the per tonne rate to be charged by GFL for the soil removed. GFL asserts that when it became clear that all the soil to be removed was T-soil, it agreed to reduce its usual rate from $95.75 to $70 per tonne, in order to match the rate charged by a competitor.
8Peras asserts that GFL agreed to charge $52 per tonne for the first 4000 tonnes of all soil removed, $70 per tonne for the next 2000 tonnes, and that the parties had not agreed on what would be charged for the final 2,928.82 tonnes of soil removed.
9On this motion, GFL put forth the affidavit of its principal, John Balaga (“Balaga”), sworn August 9, 2021 and the affidavit of Megan Francis, GFL’s Regional Credit Manager, sworn June 11, 2021.
10Peras relies on the affidavit of Esat Devris (Dave) Karaaslan (“Karaaslan”), Peras’s director, sworn July 23, 2021.
11Balaga and Karaaslan were cross-examined on their affidavits and the motion materials include reference to the transcripts of those cross-examinations. Both affidavits chronicle communications and emails between GFL and Peras that began on July 23, 2019.
Nature of the soil to be removed
12On July 23, 2019, Karaaslan contacted GFL to obtain pricing for the removal, transportation, and disposal of soil from the Property. Ornella Pizzo of GFL responded to Karaaslan’s inquiries and offered to provide quotes for a “disposal only” rate, and for a “transport & disposal” rate, for approximately 4800 MT (metric tonnes) of contaminated soil. The email requested Peras’s full name and address, contact information, site address and Certificates of Analysis (soil reports).
13Balaga’s evidence is that GFL has an internal process that requires a customer to provide a soil report from an engineer so that GFL can assess the chemistry and, among other things, the level of pollutants in the soil to be removed. The soil report allows GFL to determine whether the soil can be treated at GFL’s facilities or whether it is contaminated to the point that it must be disposed of at a landfill. GFL refers to treatable soil as “C+ soil” and soil that must be transferred to a landfill as “T-soil” or transfer soil.
14GFL determines whether it can treat the soil pursuant to standards set by the Ministry of the Environment.
Initial assessment of Peras soil and rates to be charged by GFL
15On July 23, 2019, Peras provided GFL with a copy of a soil report (the “Report”) from G2S Environmental Consulting (“G2S”), the engineer retained by Peras. The Report revealed that in one area of the Property, the soil had exceedances of semi-volatile organic compounds (“SVOCs”), which cannot be treated by GFL.
16In an email chain between August 14 and 15, 2019, Balaga suggested to Karaaslan that Peras could have its environmental consultant delineate the area with the SVOC soil, remove whatever amount was necessary to “capture these exceedances”, and send that soil to GFL as T- soil.
17Karaaslan’s response: “It s not pile we are going to excavate and send to you with truck to GFL. If you want I dig 10 feet and you can come and look at it. Thanks;” (sic)
18On August 28, 2019, Balaga emailed a Soil Quotation/Agreement to Karaaslan, Quote #: 17361, (the “Original Quote”), together with a blank Waste Profile Sheet. In his email, Balaga repeats his previous request that the BH#3 (the contaminated soil) be delineated and moved off-site separately before the C+ non-hazardous soil is removed.
19The Original Quote set out GFL’s “transport and disposal” rate of $52 per tonne for C+ soil, estimated to be 4300 tonnes, and $95.75 per tonne for T-soil, estimated to be 500 tonnes. Balaga’s evidence is that the per tonne rate charged by GFL does not change with the volume of soil to be removed.
20Balaga says that quantities of soil used in the Original Quote were estimates, based on earlier discussions with Peras. In his email sending the Original Quote to Karaaslan, Balaga stated: “the volume I had put on the quote for the T soil is an estimate. It is up to your consultant to finalize how much constitutes BH #3. Call me if you have any questions.”
21Balaga says that the Original Quote, itself, also makes it clear that quantities are estimates: in the “Comments” box in the Original Quote it says: “volumes are estimates”.
22The Original Quote contains standard terms, including the following clause, that speaks to the soil that other materials mixed into it:
Disposal/Acceptance Criteria: All loads require pre-approval and are subject to acceptance by GFL. To be accepted, all loads must: (i) be solid, non-hazardous waste as defined in Environmental Protection Act, Regulation 347 (as amended or replaced); and (ii) contain less than 20% debris (no rebar; organic wastes; garbage; rock/concrete > 6-inches); and (iii) pass slump test; and (iv) have no free-standing water upon arrival at GFL facility; and (v) not create any odour issues at the receiving GFL facility. Soil received at the GFL facility may be randomly tested. If any load(s) is not accepted, before or after its deposit at the GFL facility, Customer authorizes GFL to have such load(s) removed at the Customer's expense and Customer agrees to pay such removal expenses and all disposal and/or special handling costs incurred by GFL following receipt of an invoice.
23The Waste Profile Sheet that accompanied the Original Quote is a document that GFL requires its clients to complete, to provide more information about a particular soil-related job. When returned, the bottom portion of the Waste Profile Sheet is completed by GFL, which indicates the treatment path of the soil – i.e. whether it is C+ soil or T-soil.
24On September 19, 2019, Karaaslan sent GFL the signed Original Quote and completed the Waste Profile Sheet. In the latter, Karaaslan identified that 4000 tons of soil would be removed. Following receipt of these documents, Balaga attended at the Property. It was then that he observed that all the soil to be removed was laden with garbage and other inorganic materials.
25Balaga’s evidence is that he told Karaaslan that because the soil was so laden with garbage, it was untreatable by GFL and would need to be transferred to a landfill at the T-soil rate of $95.75 per tonne. Karaaslan disputes this evidence.
26Karaaslan stated that after he signed the Waste Profile Sheet on September 18, 2019, he realized that more than 4000 tons of soil would need to be removed. On September 23, 2019, he contacted Balaga to request the removal of an additional 2000 tonnes of non-hazardous soil.
27Karaaslan asserts that Balaga agreed to remove the additional 2000 tonnes but at the higher rate of $70.00 (compared to $52.00 per tonne quoted in the Original Quote) because GFL did not have enough space for it would have to move this soil to a separate facility. According to Karaaslan, a second Soil Quotation/Agreement was entered into on September 23, 2019 for the removal of 2000 tons of soil at the rate of $70 per tonne.
28Balaga disputes this evidence.
29Balaga states that when he advised Karaaslan that all the soil would be deemed T-soil, Karaaslan advised Balaga that he would send his business to a competitor, who would process T-soil for $70 per metric tonne. In order to keep Peras’s business, GFL agreed to match the competitor’s pricing and to revise the T-soil rate in the Original Quote for T-soil from $95.75 to $70 per tonne.
30Balaga says that in order to memorialize the new lower rate to be charged for the removal of T-soil, on September 20, 2019, Balaga sent Karaaslan a “revised quote”, bearing quote number: 17361, the same number as the Original Quote.
31Balaga says that the revised quote made no reference to C+ soil, because it had become clear that there was no C+ soil to be removed: all the soil to be removed was T-soil. GFL asserts that the “revised quote” replaced the Original Quote and governs the price GFL was to charge Peras. The revised quote references the removal of 2000 tonnes of T-soil at rate of $70 per tonne. The Comments box in revised agreement is blank.
32In his email to Balaga of September 22, 2019, Karaaslan asks if trucks can be scheduled for Wednesday as he needs to move roughly “1000 ton of garbage” (sic). Balaga replies to Karaaslan’s email on September 23, 2019, again referring to Quote #17361 as a “revised quote”, and asking Peras to sign and return it to GFL.
33Balaga disputes Peras’s assertion that GFL agreed to charge $52 per metric ton for the first 4000 metric tonnes of soil and thereafter to charge $70 per metric tonne. Balaga says that the pricing of $52 per metric tonne set out in the Original Quote applied only to C+ soil and no C+ soil was ever removed from the Property.
34GFL also asserts that the revised quote governs the per tonne rate to be charged by GFL to remove T-soil, regardless of the volume of soil removed.
35Peras signed the revised quote and completed a Waste Profile Sheet on September 23, 2019, indicating that the estimated quantity of soil was 4000 tonnes. At the bottom of the Sheet, completed by GFL, the word “Yes” was checked off in the box labelled “Special Handling Instructions” with the following handwritten words: Transfer to Landfill”.
36Peras’s position is somewhat difficult to reconcile with the evidence.
37For example, Peras asserts that the “revised quote” was, in fact, a second quote with respect to the removal of an additional 2000 tonnes of T-soil. However, Peras also asserts that the revised quote was intended to amend the Original Quote, by reducing the per tonne rate set for the first 500 tonnes of T-soil from $95.75 to $70.00 per tonne.
38Peras’s position on this issue is confusing. The Original Quote refers to 4300 tonnes of C+ soil and 500 tonnes of T-soil. There is no reference to 4000 tonnes of T-soil in the Original Quote.
39Also, the evidence is undisputed none of the soil removed was C+ soil and that all 8,928.82 tonnes removed by GFL was T-soil; no C+ soil was removed.
The terms of payment
40GFL established Peras’s account as “Cash On Delivery”, which required Peras to make credit card payments for each truckload of soil after it was delivered and weighed at GFL’s facility.
41On October 2, 8, 9, and 10, 2019, Peras’s credit card was declined because Peras had exceeded its credit limit. For any truckloads that were delivered while Peras’s card was declined, GFL did not insist on cash on delivery and, instead, invoiced Peras.
42GFL’s invoices to Peras total $706,269.83. Of that amount, $482,399.37 was paid by way of credit card. The balance of $223,870.46 was invoiced to Peras in two invoices: Invoice DV0000004101 (“Inv. #4101”) dated October 3, 2019 in the amount of $83,213.24 and Inv. #4123 in the amount of $140,657.22.
43On October 4, 2019, Balaga personally attended at the Property and was provided with a cheque from Peras in the amount of $110,000. This amount fully satisfied Inv. #4101, leaving a credit of $26, 786.76, which was applied toward the payment of Inv.# 4123.
44As of this motion, GFL is seeking payment of the balance owing on Inv. #4123 of $113,870.46.
Contract Terms
45Peras says that it had an agreement with GFL (i.e. the Original Quote) by which GFL agreed to charge $52 per tonne for the removal of the first 4000 tonnes of soil and, as per the revised quote, GFL was entitled to charge $70 per tonne for the removal of the next 2000 tons of T-soil.
46Peras claims that there was no agreement with GFL as to the rate to be charged for the removal of soil in excess of 6000 tonnes and disputes that GFL is entitled to charge $70 per tonne for the removal of the last 2928 tonnes of T-soil.
47As mentioned above, neither the Original Quote, nor the revised quote, can support Peras’s claim that its agreement with GFL was for $52 per tonne on the first 4000 tonnes of “soil”.
48GFL responds to Peras’s allegation that it had no agreement with GFL as to the rate to be charged for the removal of the final 2,928 tonnes of T-soil, that GFL made it clear in emails and in the Original Quotation that the quantities of soil to be removed were estimates only. I accept that argument, which is supported by the evidence.
49The evidence is undisputed as to how the GFL determined how much soil had been removed: when the trucks with soil arrived at GFL, they were weighed to determine the amount of soil, and a Weigh Ticket was issued. In oral submissions, GFL counsel agreed that the soil was removed by third-party trucks, arranged by GFL. On the motion, GFL conceded that Peras did not receive GFL’s “Summary Contract Activity Report”, providing a detailed breakdown of the volume of soil removed and the associated charge, or copies the Weigh Tickets, until after GFL had submitted its invoices to Peras.
50Peras did know the amounts it was being charged on an ongoing basis, because Peras’s credit card was being charged or it received as invoice - Inv. #4101 and Inv. #4123 - but Peras asserts that it did not know how much soil was being removed by GFL or the rate it was being charged.
51Peras accepts GFL’s evidence as to the amount of soil removed from the Property and that all the soil removed was T-soil. In its statement of defence, Peras also admits that it hired GFL who provided “a quote at a lower cost than its competitors” (Defence at para. 3).
52GFL states that the actual volume of soil removed does not affect the per tonne rate to be charged. On that basis, GFL claims to be entitled to payment for the 2928 tonnes of T-soil it removed at the rate set out in the revised quote of $70 per metric tonne.
What was the agreement, if any, between the parties concerning the rate to be charged for the removal of T-soil?
53In support of GFL’s version of the events, GFL relies on the following:
(a) in September and October 2019 emails from G2S to Balaga, G2S describes what is being removed as “garbage” and “waste”;
(b) Balaga’s email to Karaaslan of September 20, 2019 attaching the “revised quote”;
(c) the fact that the revised quote makes no reference to the removal of any C+ soil, because, Balaga asserts, there was no C+ soil to be removed;
(d) GFL did not begin work until the revised quote was accepted and signed by Peras;
(e) GFL reduced its originally-quoted T-soil rate in recognition that all soil to be removed was T-soil and to match the rate that Karaaslan advised was being offered by GFL’s competitors.
54GFL submits that the position taken by Peras at para. 9 of its factum is inconsistent with the evidence put forth by Peras. In the factum, Peras appears to allege the GFL failed to separate the soil and to differentiate between the treatable (C+) and non-treatable (T) soil. That argument was not advanced in oral submissions.
The Law on Summary Judgment
55Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
56As set out in Hryniak v. Mauldin,1 there will be no genuine issue requiring a trial:
…when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”2
57To be appropriate, summary judgment must provide a “fair and just adjudication” that allows the judge to “find the necessary facts and resolve the dispute. [T]he standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”3
58Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion for summary judgment:
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
(1) Weighing the evidence.
(2) Evaluating the credibility of a deponent.
(3) Drawing any reasonable inference from the evidence.
59Hyrniak offers a “roadmap” for a summary judgment motion, at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
60The principles set out in Hyrniak governing summary judgment motions were considered by the Court of Appeal in Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, at para 7:
On a summary judgment motion the parties are expected to put their best foot forward and the court will assume that all necessary evidence has been tendered. A motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial. A motion judge is not required to resort to the summary judgment enhanced powers to remedy a party’s evidentiary shortcomings. (All citations omitted).
Analysis
61Applying the above-referenced principles, I am satisfied that this matter is appropriate for summary judgment. Among other things, there are few material facts in dispute. For example:
(i) There is no dispute as to the amount of soil that was actually removed by GFL;
(ii) There is no dispute that all of the soil removed by GFL was T-soil;
(iii) There is no dispute that, in the Original Quote, GFL quoted a rate of $95.75 per tonne for the removal of T-soil; and
(iv) There is no dispute that GFL agreed to reduce that rate to $70 per tonne in order to match the rate offered to Peras by a competitor.
62I also find that I am able to make reasonable inferences from the undisputed facts allowing me to confidently conclude that there is no genuine issue requiring a trial and that this process allows the court to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. I note also, that under the current Rules of Civil Procedure, R.R.O. 1990, Reg. 194, this claim would proceed under the simplified rules, which mandates a summary trial, including that evidence be presented by affidavit. To a significant degree, the production and cross-examination of the evidence undertaken by the parties in the course of this motion is not too different from what might have been available to them, had this matter been pursued under r. 76.
63I have considered and weighed the evidence and the submissions made on the motion.
64In oral argument, counsel for Peras acknowledged that the only evidence on this motion as to the nature of the soil that was removed comes from GFL. On that basis, GFL’s evidence that all the soil it removed was T-soil must be accepted. GFL’s evidence is supported by Karaaslan’s admission in cross-examination that the Property was a former landfill site.
65Peras can point to no document to support Karaaslan’s evidence that GFL agreed to charge $52 per tonne for the removal and disposal of the “first 4000 tonnes” of soil – whether C+ soil or T-soil. I find that, at best, Karaaslan can establish that GFL had agreed to charge $52 per tonne for the removal of C+ soil which, at the time of the Original Contract, was estimated to be 4300 tonnes.
66However, I do not accept the position taken by Peras that the Original Quote should apply to reduce the amount chargeable by GFL to $52 per tonne for the removal of “the first 4000 tonnes of soil”. Firstly, the wording in the Original Quote is clear that the $52 per tonne rate applies only to C+ soil. Secondly, the evidence is that there was no C+ soil removed. Finally, it cannot reasonably be inferred from the Original Quote that the $52 per tonne rate was intended to apply to the first 4000 tonnes of all soil removed by GFL.
67It is also impossible to accept the position taken by Peras that it is entitled to rely on the C+ rate in the Original Quote but not be bound to pay the T-soil rate of $95.75, even on the first 500 tonnes, as set out in the Original Quote.
68I find that the reasonable and logical inference to be drawn from all the evidence is that when it became clear to GFL, and to Peras, that all of the soil to be removed from the Property was T-soil, GFL agreed to revise the Original Quote to reduce the per tonne rate charged for T-soil from $95.75 to $70.
69Also, while Peras asserts that GFL overcharged it for the removal of the T-soil, the undisputed evidence is that, at the request of Peras, GFL reduced its quote to match the price for removal of T-soil that Peras said it would be charged, were Peras to hire a competitor of GFL. That evidence, unchallenged, leads to an inference that Peras was fairly charged by GFL.
70While the evidence could support an inference that Peras was not tracking the amount of soil as was being removed and did not realize how much soil would need to be removed until after the removal was complete, there is no suggestion that GFL removed soil without the consent and authorization of Peras.
71For all the above reasons, I find that GFL has established that it had an agreement with Peras to remove T-soil from the Property at the rate of $70 per tonne and that the amounts invoiced are consistent with that agreement.
Interest on overdue accounts
72As per the terms of Inv. #4123, GFL demanded payment upon receipt of the invoice and charged interest on overdue accounts at the rate of 24% per annum commencing 30 days from the date of the invoice. The Original Quote and the revised quote also contain this interest clause.
Disposition
73For the reasons set out above, summary judgment is granted to GFL in the amount of $113,870.46 together with interest on that amount at the rate of 24% per annum, commencing on the 31st day after delivery to Peras of Inv. 4123, which I understand took place on October 10, 2019, the date on Inv. #4123. If I am wrong about that date and the parties cannot agree on when interest is to commence, they may arrange a further very brief hearing before me to make submissions.
Costs
74As the successful party on this motion, it is reasonable for GFL to expect to be awarded its costs.
75At the conclusion of the hearing, the parties were directed to serve their Costs Outlines and file them no later than January 27, 2022. These are to be sent to my attention, via email to the Trial Co-ordinator, with a request, made on my direction, that these not be released to me until after I had decided this motion.
76Notwithstanding my direction above, I would urge the parties to attempt to reach an agreement on costs. However, if they are unable to do so, then costs submissions shall be made as follows:
Within 21 days of the date of the release of this decision, GFL shall serve Peras its written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs, and copies of any relevant offers to settle. These are to be submitted to me by filing them, via email, through the Trial Co-ordinator.
Within 14 days of the service upon it of GFL’s costs submissions, Peras shall serve and file its responding submissions, of no more than three pages, double-spaced, together with its draft bill of costs, and copies of any relevant offers to settle.
If GFL seeks to deliver reply submissions, it may do so within 7 days of service upon it of Peras’s costs submissions. Reply submissions shall not exceed one page in length.
If no submissions are received within 35 days of the date of the release of these reasons, the parties shall be deemed to have resolved the issue of the costs and costs will not be determined by the court.
L. Sheard J.
Date: January 26, 2022
COURT FILE NO.: CV-20-74029
DATE: 20220125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GFL Environmental Inc.
Plaintiff
- and -
Peras Construction Inc.
Defendant
REASONS FOR DECISION
L. Sheard J.
Released: January 26, 2022
Footnotes
- 2014 SCC 7, [2014] 1 S.C.R. 87.
- Ibid, at para. 49.
- Ibid, at para. 50.