COURT FILE NO.: CV-19-82179 DATE: 2023/03/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OnPoint Group Ltd. , Plaintiff (Responding party) and Conseil Des Écoles Catholiques du Centre Est , Defendant (Moving party) Ty Corp. Construction , Defendant and Multi-Service Restoration and Provision Construction Management Inc. , (Intervening Parties)
BEFORE: Justice A. Doyle
COUNSEL: Ronald Peterson, Counsel for the Plaintiff, OnPoint Group Ltd. Ronald Caza, Counsel for the Defendant, Conseil des Écoles Catholiques du Centre Est No one appearing for the Defendant, Ty Corp. Construction Noémie Ducret, Counsel for the Intervening Parties
HEARD: February 6, 2023 at Ottawa
Decision on a summary judgment motion
Overview
[1] This summary judgment motion was brought by the defendant Conseil des Écoles Catholiques du Centre (“CECCE”) to determine whether the portable school classrooms (“portables”) built by the plaintiff OnPoint Group Ltd. (“OnPoint”) are “improvements” within the meaning of the Construction Act, R.S.O. 1990, c. C.30, (the “Act”) and therefore engage the lien provisions of the Act.
[2] Given the common questions of law and fact between this proceeding and the CECCE’s motion for summary judgment in the intervening parties’ file, the court permitted the intervening parties to participate in this hearing pursuant to r. 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and on consent of the parties. The intervening parties Multi-Service Restoration (“MSR”) and Provision Construction Management Inc. (“PCM”) can contribute to this hearing because they built similar portables for the CECCE.
[3] The CECCE also requests that OnPoint’s claim be dismissed because there is no basis for a claim for unjust enrichment.
Background
What are Portables?
[4] Generally speaking, portables are buildings located outside the school building which serve as classrooms for teachers and students. They have the following characteristics:
- They have electricity, internet connectivity, ventilation, windows, and insulation in the floor, walls and ceilings;
- They are connected to the school’s public announcement system; and
- They do not have washrooms or running water.
[5] As of August 31, 2021, CECCE was the owner of approximately 133 portables that were available to the schools under its control.
[6] Every summer, for the past decades, the CECCE relocates portables depending on the student registration for the upcoming school year.
[7] The CECCE considers several factors when determining the location of the portables including new schools, renovation of a school, expansion of a school and change of school boundaries.
[8] The CECCE must have a good inventory of portables to rapidly respond to changes in student populations and to transfer portables from one school to another or move a portable to storage.
[9] Portables can be transported from one school to another as one unit or in two halves.
OnPoint Portables
[10] On July 26, 2019, the CECCE hired the defendant Ty Corporation (“Ty Corp”) to construct and install 14 school portables at the cost of $869,000 plus HST after the original contractor failed to build the portables. Time was of the essence because the school year would commence in September 2019.
[11] CECCE paid Ty Corp the amount of $1,056,048.80 for the portables which included changes to the original contract.
[12] Ty Corp hired OnPoint to build the portables for a contract price of $759,000.
[13] The procurement process for the contract to build portables (2019DIV-063) was initiated in January 2019 and included a defined term for the building and delivery of the portables. The contract provided a schedule with a list of possible destinations for the classrooms. Bidders were asked to provide a price for the delivery of the portables to and around the Ottawa area schools.
[14] OnPoint commenced building the portables in Vars. Another contractor transported the two halves of the portables to the Paul Desmarais school site (“school site”).
[15] At the school property, the portables were placed by another contractor arranged by Ty Corp. on a temporary foundation (stilts). Temporary foundations include a paved surface such as a parking lot, an exterior sport field or a courtyard. The portable remained at the temporary foundation until the installer moves it and sets it up on a more permanent base.
[16] OnPoint connected the two halves of the portables and another contractor arranged by Ty Corp. moved them to their final resting spot. The roofing, siding, stairs, landing and window casings were then completed by OnPoint.
[17] The portables are constructed in accordance with plans and specifications prepared by architects and engineers (A100 and S300). The plans are based on construction drawings approved by the City of Ottawa and in accordance with the Ontario Building Code.
[18] The City of Ottawa approved the construction plans and it conducted regular inspections. The work was also regularly inspected by architects and engineers.
[19] Ty Corp did not complete all of the portables required by the contract and CECCE ended their contract with Ty Corp on August 13, 2020.
[20] On September 28, 2020, the CECCE hired MSR to complete the four remaining portables for the amount of $380,000.
[21] OnPoint was not fully paid by Ty Corp, and it filed a lien for $241,123.99 on the property of Paul Desmarais school.
[22] On June 4, 2020, OnPoint obtained judgment against Ty Corp for $241,123.99 plus interest and costs. The total amount outstanding as of June 19, 2022 was $405,265.83.
[23] The CECCE held back certain funds that were due to Ty Corp. The court notes that Luc Poulin, the CECCE’s manager of buildings, indicates that the monies were actually held back for a warranty and not for the purpose of complying with the Act. In his discovery, Mr. Poulin indicated that it was to make sure that the work was done with the right quality.
[24] Further liens were filed on behalf of Pro-Fuzion Electrik Inc. in the amount of $195,000 and by 10597503 Canada Inc. for $36,880.
PCM Contract
[25] On September 10, 2019, PCM entered into a subcontract agreement with Ty Corp to complete the construction of nine of the 14 portables. PCM and MSR partnered to complete and finance the construction and delivery of the four remaining portables, and agreed to complete future work awarded by the CECCE.
[26] This subcontract concerned the construction of the portables that were not completed by OnPoint.
[27] As of February 2020, PCM has only received $39,000 of the $166,328.30 owed under the PCM contract.
[28] On July 29, 2021, PCM and MSR commenced an action against the CECCE and its representative requesting damages for breach of contract, unjust enrichment and/or breach of duty of good faith and damages for failure to comply with s. 39 of the Act.
Position of CECCE
[29] CECCE submits that this an appropriate case for summary judgment because the issue can be determined on the record filed by the parties. Summary judgment will dispose of the total action.
[30] It requests that the lien registered by OnPoint on the Paul Desmarais school be removed because the portables constructed are not improvements within the meaning of the Act.
[31] CECCE submits that the jurisprudence supports their position that portables, which are created as temporary solutions to fluctuating increases of student population, are not improvements within the meaning of the Act. When a portable is no longer required due to a decrease of student population, it is removed from the property.
[32] In addition, OnPoint has failed to present evidence that there has been unjust enrichment.
Position of OnPoint
[33] OnPoint submits that there is a genuine issue requiring a trial and that material facts are in dispute. The CECCE failed to admit many facts set out in the Request to Admit, including why CECCE held back 10% claiming it was for the purposes of the warranty rather than the Act requirements. CECCE failed to provide any evidence of engineers and architects who could have assisted the court with respect to the construction of the portables.
[34] The intent of the Act is to prevent owners of land from receiving benefits of buildings erected and work done on their land at their instance without paying. The portables are capital repair within the meaning of an improvement. It is intended to extend the normal economic life of the land or of the building. It is not maintenance work designed to prevent the normal deterioration of the land, building, structure or works.
Position of the Intervening Parties
[35] The intervening parties are involved in another action which shares similar facts as they relate to the portables built for CECCE. The issues in their case also deal with the question of whether portables are “improvements” under the Act.
[36] The portables completed by MSR and PCM in their contract were a result of OnPoint not completing all of their portables in its contract with Ty Corp.
[37] They submit that the portables installed on CECCE school premises have improved the value and productivity of the land and are substantially attached to the premises on which they were installed. A summary judgment should issue finding that the portables built were “improvements” within the meaning of the Act.
Legal Framework
Introduction
[38] Construction liens are charges against interests in land and premises and are governed by the Act. Construction liens provide contractors and other parties to the contract protection for payment for materials and/or services provided on a construction project.
[39] A review of the legislative framework, the historical developments, external sources and case law is set out below. One of the objectives of the Act is to allow those who complete work on a property to make a claim against the property owner, a non-contracting party. However, their work must meet the definition of “improvement” as defined in the Act.
[40] As stated in Scott, Pichelli & Easter Limited v. Dupont Developments Ltd., 2022 ONCA 757, at paras. 8-9:
The interpreter’s task in statutory interpretation is to discern the legislature's intention in order to give effect to it. The interpreter must attend to text, context, and purpose, to which I now turn: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 117, 118-124.
The purpose of the Construction Act is to protect lien claimants by ensuring that they are compensated for the increase in the value of a property to which their work contributed.
[41] The determination of whether a portable is an ‘improvement’ is a fact driven exercise. Has there been “value added” to the property?
Legislation
[42] Section 1 of the Act reads:
“improvement” means, in respect of any land,
(a) any alteration, addition or capital repair to the land,
(b) any construction, erection or installation on the land, including the installation of industrial, mechanical, electrical or other equipment on the land or on any building, structure or works on the land that is essential to the normal or intended use of the land, building, structure or works, or
(c) the complete or partial demolition or removal of any building, structure or works on the land; (“améliorations”).
Extrinsic Sources
[43] In Bristol-Myers Squibb Co. v. Canada, 2005 SCC 26, [2005] 1 SCR 533, at para. 156, the Supreme Court spoke of aids to statutory interpretation:
It has long been established that the usage of admissible extrinsic sources regarding a provision’s legislative history and its context of enactment could be examined. I held in Francis v. Baker, at para. 35, that “[p]roper statutory interpretation principles therefore require that all evidence of legislative intent be considered, provided that it is relevant and reliable.” Consequently, in order to confirm the purpose of the impugned regulation, the intended application of an amendment to the regulation or the meaning of the legislative language, it is useful to examine the RIAS, prepared as part of the regulatory process (see Sullivan, at pp. 499-500). McGillis J. in Merck 1999, at para. 51, indicated:
. . . a Regulatory Impact Analysis Statement, which accompanies but does not form part of the regulations, reveals the intention of the government and contains “…information as to the purpose and effect of the proposed regulation”.
[44] In the Annotated Ontario Construction Act by Duncan W. Glagol and David Keeshan (Thomson Reuters, 2021) at page S.1 at para. 4, the authors describe the history:
Since 1896, “materials” have been defined to include “every kind of movable property”. Subsection 6(1) of the Mechanics’ Lien Act, R.S.O. 1980, c. 261 further indicated that, to be the subject matter of a lien, “material” had to “plac[ed] or furnish[ed]….to be used” in an improvement. Courts sought some nexus between the materials and the improvement, but often did so in a contradictory manner.
[45] The Official Report of Debates (Hansard) of Tuesday August 3, 2010, of the Standing Committee on Finance and Economic Affairs discussed the amendment made to the Construction Act as a result of the Ontario Court of Appeal’s decision in Kennedy Electric Limited v. Dana Canada Corporation, 2007 ONCA 664, 285 D.L.R. (4th) 466, that the work done in that case was not lienable.
[46] At page F-148 Mr. Ron Johnson, Representative for Council of Ontario Construction Associations (COCA) states:
This proposed amendment would restore fundamental rights for a great many contractors to get paid monies owed to them for work already completed. Despite the merits of this proposed amendment, it will, however only serve a narrow selection of tradespeople within the construction industry and frankly would only address the symptom of the greater problem confronting Ontario’s construction industry. Many contractors are not paid in full for their work, and as a result, are subjected to undue and unjust economic hardship. COCA is hopeful that the government remains open to amending this legislation to include provisions that would further change the Construction Lien Act to include (1) the timely release of holdback monies to contractors and (2) the assurance of the preservation of their lien rights until such monies are paid.
[47] At A-194 Mr. Charles Sousa’s questions were: “One is, what impact will the amendment to the definition of “improvement” have on your members? And the other one would be, could you elaborate then on how these amendments would be good for business in Ontario?”.
[48] In responding to Mr. Sousa’s questions, Mr. Ron Johnson stated:
The definition of “improvement” is an important amendment and we’re not going to minimize the value of that amendment that you guys have put into this bill. It’s significant to a number of contractors who work primarily in the electrical or mechanical sectors. It does, however, in terms of the overall package of amendments that you’ve proposed, fall short on a number of fronts. You have, as a government failed to address the holdback issue, which is of great concern to the broader construction sector.
The definition of “improvement”, although valuable, affects a small percentage of those who actually have to utilize the Construction Lien Act. A lot of contractors and various other trades within construction don’t really require or need the definition of “improvement” to be changed. It only affects a couple of trades.
[49] In Conduct of a Lien Action (Toronto: Carswell, 2012), at p. 26, the author Duncan W. Glahol states:
While the supply and installation of moveable items such as office furniture will not give rise to a lien, mere attachment to the land does not automatically make a supply lienable. Courts have held that water cooling towers, for example, even though physically attached to the premises, did not give rise to a lien, while a complex air conditioning unit has been held to be lienable, even though it could be removed. Supply and installation of portable structures such as trailers resting on concrete pads without being connected to the land does not give rise to a lien. Until recently, even the supply and installation of massive machines or entire plants weighing millions of tons did not create lien rights if they were neither a component of the building nor consumed in the construction of the building. However, the definition of “improvement” in the Ontario Act was amended in 2010 to include such installations. Presumably, under the new definition, the work held not to be lienable in cases such as Kennedy Electric would be lienable under the new definition. [Footnotes omitted.]
[50] Kevin Patrick McGuiness notes the following in Construction Lien Remedies in Ontario, 2nd ed. (Scarborough: Carswell, 1997), at pp. 62-63:
Moreover, there is case law which clearly suggests that the permanence of a structure erected or installed is only one of a number of criteria that may be considered in deciding whether a premise has been improved. Thus, it has been held that the mere fact that a building or structure may be removed in some way is not in itself sufficient to prevent its construction from being considered to be an improvement. Modern engineering techniques permit virtually every structure to be removed from one site and re-assembled elsewhere. The key question in many cases is to decide whether the installation of a particular thing has caused a sufficient change to be made to the premises so that its installation has enhanced the value, beauty or utility of the premises itself. The fact that the thing installed has not become completely or irreversibly affixed to the land on which it sits is not necessarily conclusive of the question of whether the premises have been improved (although the installation of a fixture will clearly give rise to a lien). The court may also consider whether there is such a degree of substantial attachment between the thing installed and the premises on which the installation was made, that a reasonable person would consider the premises to have been improved as a result of the installation. Although this is a difficult test to satisfy, provided it is satisfied then even a temporary structure may be seen to constitute an improvement. [Footnotes omitted.]
Case Law
[51] In Kennedy Electric, the Ontario Court of Appeal dismissed an appeal where the trial judge held that the work completed was not lienable under the Act. Although subsequent amendments to the Act would now render this work an “improvement” under the Act, the Court of Appeal’s analysis provides guidance.
[52] The project in Kennedy involved the plaintiff’s construction of a new addition to accommodate an F-150 truck frame assembly line which took six months to build. The plaintiff was not involved in the construction of the new addition nor in the connection of the assembly line to the existing building services. These connections were made by other trades independent of the assembly line installation.
[53] The fully installed assembly line consisted of 100 mezzanine platforms and 165 robots. The assembly line was attached to the floor by a system of some 2,000 to 3,000 mechanical and chemical bolts ranging from one-quarter to three-eighths of an inch in diameter and from six to eight inches in length. The assembly line covered approximately 100,000 square feet of the new addition. It was twenty feet high and weighed approximately 500,000 tons.
[54] The new addition also housed two other assembly lines that were installed by other companies and used to supplement the production of the F-150 truck frame line. These two lines were involved in the electronic painting, waxing and stacking of the F-150 frames.
[55] The work of the plaintiff and its subcontractors related to the following:
- Assembly and installation at the build sites;
- Demonstration of operability of the line to Ford at the build sites;
- Tear-down, labelling and packing of the line at the build sites;
- Shipment of line parts from the build sites; and
- Reassembly and installation.
[56] The Court of Appeal’s review of the trial decision and the leading cases, at paras. 15-20, is instructive:
The trial judge conducted a thorough review of the authorities that related to the issue before him. He started by considering the Supreme Court of Canada’s approach to the interpretation of the predecessor Mechanics’ Lien Act, R.S.O. 1960, c. 233. In Clarkson Co. Ltd. v. Ace Lumber Ltd., [1963] S.C.R. 110 at p. 114, Ritchie J. quoted with approval the dissent of Kelly J. in Ace Lumber Ltd. v. Clarkson Co. Ltd., [1960] O.R. 748 at 757-58 as follows:
With the greatest respect, I am, however, of the opinion that the proper approach to the interpretation of this statute is expressed in the dissenting opinion of Kelly J.A. where he says that:
The lien commonly known as the mechanics’ lien was unknown to the common law and owes its existence in Ontario to a series of statutes, the latest of which is R.S.O. 1960, c. 233. It constitutes an abrogation of the common law to the extent that it creates, in the specified circumstances, a charge upon the owner’s lands which would not exist but for the Act, and grants to one class of creditors a security or preference not enjoyed by all creditors of the same debtor; accordingly, while the statute may merit a liberal interpretation with respect to the rights it confers upon those to whom it applies, it must be given a strict interpretation in determining whether any lien-claimant is a person to whom a lien is given by it.
The trial judge also referred to the report of the Attorney General’s Advisory Committee on the Draft Construction Lien Act of April 8, 1982 and in particular the definition of the word “improvement” in the proposed legislation:
The definition of the term improvement has been redrafted to make it clear which types of work on land gives rise to a lien. The purpose of the Act is to protect those who contribute their services or materials towards the making of an improvement to premises. The types of work which constitute an improvement are set out in clauses a and b. While the definition of “improvement” is broad, the Committee has attempted to draft it in such a way that it will be clear that the lien created by the Act applies only in the case of the construction and building repair industries. [Emphasis added by Killeen J.]
The trial judge also cited the decision of this court in Central Supply Co. (1972) Ltd. v. Modern Tile Supply Co. Ltd. (2001), 55 O.R. (3d) 783 at para. 15 where Abella J.A. said:
The purpose of the definition of “improvement”, as set out in the Report of the Attorney General’s Advisory Committee on the Draft Construction Lien Act …was “to protect those who contribute their services or materials towards the making of an improvement to a premises”. The report also stressed that while the definition of improvement was a broad one, it was drafted to make it clear that the lien created by the Act applied “only in the case of the construction and building repair industries.”
The trial judge also relied upon Hubert v. Shinder, [1952] O.W.N. 146 (C.A.). In that case, this court considered whether the repair and installation of laundry equipment in a building was covered by the Mechanics’ Lien Act. The court held that the laundry machinery was “not part of or an improvement to the building so as to constitute a lien.”
The trial judge referred to the judgment of the New Brunswick Court of Appeal in Beloit Canada Ltd. v. Fundy Forest Industries Ltd. (1981), 127 D.L.R. (3d) 320 which he found “followed basically the same rationale as the Ontario Court of Appeal did in Hubert.” In Beloit, the court found that a corrugating paper machine which weighed 2,500,000 pounds installed on a concrete foundation in a building but removable from it was not an improvement under the Mechanics’ Lien Act, R.S.N.B. 1952, c. 142 [now R.S.N.B. 1973, c. M-6].
The trial judge also considered the judgment of Rosenberg J. in Baltimore Aircoil of Canada Inc. v. Process Cooling Systems Inc. (1993), 16 O.R. (3d) 324 (Gen. Div.). In that case, Rosenberg J., on a motion for summary judgment, found that the CLA did not apply to the installation of a water tower which was attached to the roof of a building. He found that it was not incorporated into the building. The Court of Appeal reversed the judgment on other grounds.
[57] The case of Spears Sales & Service Ltd. (1995), 17 C.L.R. 197 (B.C. Co. Ct.) considered whether pumps were an integral part of the function of the building. The court held that this question must be answered in strict terms because it is based on statute. This question did not concern the function of the business it housed, and it was held that the pumping system was not an improvement. The intention of the parties was not determinative.
[58] Wetmore L.J.S.C. in Chubb Security Safes v. Larken Industries Ltd. (1990), 36 C.L.R. 225, stated that:
Equipment designed and used for the operations of the business within the structure, not integral to that structure, do not thus become “improvements”.
[59] In Boomars Plumbing & Heating Ltd. v. Marogna Bros. Enterprises Ltd. (1988), 51 D.L.R. (4th) 13 (B.C.C.A.), the court held that modular units previously used in construction camps and installed on vacant land for use as a motel constituted improvements under the B.C. legislation. The units were installed without any foundation and secured by their own weight. In discussing the issue of permanency, the B.C. Court of Appeal said:
“permanent” is a relative term which does not necessarily involve remaining in the same state and place forever or for an indefinitely long period. It is used in contradistinction to “occasional”. If the thing is intended to remain in place so long as it serves its purpose, that satisfies the element of permanency.
[60] In Deal S.r.l. v. Cherubini Metal Works Limited, 2001 BCCA 49, 84 B.C.L.R. (3d) 179, the court held that the supply of moulds that were used to form concrete components for a rapid transit project constituted an improvement and that the material supplier had a right to claim a lien. In addressing the issue of permanency, the court said:
Moreover, it is clear that the moulds were intended to be in place for at least the duration of the project which, in the context of this case and the purpose of the moulds and the shed, is a substantial time sufficient to satisfy the requirements of the definition.
[61] In 520271 Ontario Inc. v. Guest, 2006 CarswellOnt 8868 (S.C.), the court held that although electrical work completed benefited the lease holder’s interest by making the premises more conducive to a veterinary practice, it did not increase the value of the property and was not a lienable interest.
[62] In Hank’s Plumbing and Gas Fitting Ltd. v. Stanhope Construction Ltd. (1978), 18 A.R. 417, the plaintiff performed work on modular homes that were constructed at the defendant’s factory. The Alberta District Court held that the plaintiff’s services were not lienable because the modular homes had “all the attributes of a chattel, and no ‘interest in land’ could be passed to a purported lienor under the Builders’ Lien Act.” The homes were essentially finished in the factory, left the factory in two pieces and were assembled at their ultimate destination. The plaintiff only performed work on the homes in the factory.
[63] Key to the court’s conclusion was the fact that the owner of the homes could direct where the home would be installed. In other words, the homes had no connection to specific land and could be moved at the owner’s direction.
[64] The court found that the Builders’ Lien Act did not apply because a completed unit was purchased, and the location of the home was in the purchaser’s sole discretion. The court placed substantial emphasis on the fact that when the work was completed there was no certainty as to where it was going to be located: at para. 11. The court noted that the defendant purchaser testified that they believed they “bought a finished product”: at para. 13.
[65] The same conclusion was reached by the Ontario Supreme Court’s bankruptcy division in Inesco Ltd (Trustee of) Re., [1986] O.J. No. 2153. Inesco concerned portable schoolrooms which were fully constructed off-site and delivered finished to the site. The portable schoolrooms were found to be self-contained units capable of being moved from place to place and thus, resembled chattels. At para. 3, Hollingworth J. stated:
In the normal course the schoolrooms would have been assembled by the debtor and moved to a site stipulated by the Board. In the normal course the schoolrooms were delivered completely finished and installed in cement blocks which rest on cement pads. With one exception the schoolrooms were not manufactured for a specific site. The debtor was notified of the site by the Board prior to installation. The schoolrooms included equipment necessary to hydro hook-up but the actual hook-up was done by the Board. The schoolrooms had no water or sewage facilities and finally the schoolrooms are basically self-contained units which can be moved from place to place like a house trailer or a mobile home.
[66] The court referred to the definition of improvement within the meaning of s. 8 of the Construction Lien Act, S.O. 1983, c. 6. Under s. 8, an improvement was defined as follows:
i. any alteration, addition or repair to, or
ii. any construction, erection or installation on,
iii. any land, and includes the demolition or removal of any building, structure or words or part thereof, and 'improved' has a corresponding meaning;
[67] Hollingworth J. found that the classrooms were not installations on any land or otherwise an improvement as defined in the Construction Lien Act because of their portability. The portable classrooms were assembled in one location and then moved to a site stipulated by the school board. They were not generally manufactured for a specific site. Normally, the classrooms were delivered finished and installed on cement blocks which rested on cement pads. The classrooms were self-contained units which could be moved from place to place like a house trailer or a mobile home.
[68] In Aspen Lumber v. Depner, 1980 CarswellAlta 207, 16 R.P.R. 109 (Q.B.), at para. 6, the Alberta Court of Queen’s Bench found that “[s]ervices performed off the lands can be the subject of a lien.” In this case, a contractor supplied lumber that was used to make prefabricated condominium sections (i.e., framing). The contractor cut the lumber at its own factory, while the building of the sections was completed at another factory. The court held that the contractor of the prefabricated framing sections of the building was entitled to a lien because the frames were not chattels. Rather, the court found that the structures were manufactured specifically for the land; had the sections been assembled on the lands, the contractor would have been entitled to a lien.
[69] The court held that the contractor was entitled to a lien, notwithstanding the fact that the contractor supplied services off-site and that the framing was constructed off-site. The court distinguished the facts from the earlier Hank’s Plumbing case on the basis that (a) Hank’s Plumbing dealt with true chattels that were not affixed to the land, while (b) in this case, the prefabricated sections were manufactured with the specific land in mind.
[70] In U.S. Steel Inc., Re, 2016 CarswellOnt 12275, the court found that the installation of black soil and flowers, and removal of weeds and dirt was within the definition of “improvement” because the services were intended to alter, enhance, or add to the land (at paras. 14-16).
[71] In Pollet’s Electrical Services Ltd. v. The Guarantee Company of North America (1974), 5 Nfld. & P.E.I.R. 579 (Sup. Ct. A.D.), the court found that an asphalt plant was not a chattel and hence was lienable under the Mechanics’ Lien Act.
[72] In Hubert v. Shinder, 1952 CarswellOnt 197 (C.A.), the Ontario Court of Appeal held that the trial judge erred in finding that work and materials used for the rehabilitation of laundry machinery were an improvement to the building. The work and materials were moveables and were not “used in the making, constructing, erecting, fitting, altering, improving or repairing of” the erection or building in question as required by s. 5(1) of the Mechanics’ Lien Act: at para. 8.
[73] In 3726843 Canada Inc. v. 879115 Ontario Ltd., Glithero J. found that the product purchased was moveable, reconfigurable and would form part of the brokerage property but not part of the building. He noted the following at paras. 25-26:
There are many cases that have considered the degree of annexation of the material to the building and whether or not that made the material lienable. I think those cases make it clear that the use of a few screws to fasten material will generally not be determinative, nor will electrical wiring. Rather one must consider the circumstances of the particular case, the nature of the material, the application of the material within the particular business and the particular building, and determine whether in all of those circumstances the materials were intended and acted as an improvement to the building, or on the other hand, as an improvement and integral aspect of the business conducted therein.
In my opinion the moveable walls/furniture system supplied here did not constitute a lienable improvement. I accept Benninger’s evidence that he intended it to be a portable piece of his real estate business office plant. While the plaintiff seeks to stress the effort and expense that would be required to disassemble and move it, it was sold in part based on those features. The onus of proving that the material supplied constituted a lienable improvement lies on the plaintiff. I am not so satisfied, and find the opposite to be the case.
Discussion
No genuine issue requiring trial
[74] The court finds that this is an appropriate case for summary judgment.
[75] Rule 20.04 (1) reads:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant 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:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[76] As stated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the court to make necessary findings of fact; (2) allows the court to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[77] A responding party is required to put his best foot forward by setting out relevant evidence with specific facts and coherent evidence supporting the assertion that there is a genuine issue for trial. One cannot simply assert a bald denial.
[78] The court has had the benefit of numerous affidavits with attached exhibits of documentary evidence.
[79] The parties’ testimonies at discoveries, as set out below, have enabled the court to make findings, weigh the evidence and draw reasonable inferences from the evidence.
[80] The court finds that the issues of whether the portables are “improvements” within the meaning of the Act or whether there has been unjust enrichment are not genuine issues requiring a trial.
Are the portables ‘improvements’?
Introduction
[81] The Ontario Court of Appeal in Kennedy stated that whether or not a person is entitled to a lien should be strictly construed and that the intention of the Act was to include only building construction and building repair industries.
[82] For the reasons fully explained below, the court finds that the portables constructed for Paul Desmarais School are improvements within the meaning of the Act because:
- OnPoint completed the portables on the school site;
- The final destination of the portables was known to the parties thereby there was a connection to the school site;
- CECCE regularly held back 10% of funds advanced to Ty Corp.; and
- The portables enhanced the value of the school.
[83] OnPoint has met its onus is to prove the that it had provided a lienable supply. (see Toronto Zenith Contracting Limited v. Fermar Paving Limited, The Corporation of the City of Barrie, et. al., 2016 ONSC 4696, at para. 25.)
[84] The definition of “improvement” in s. 1(1) of the Act includes “essential to the normal or intended use of the land”.
[85] The meaning of "improvement" in Black's Law Dictionary, 5th ed., (1979), at p. 682 is:
A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.
[86] Here, the portable has a purpose and it is essential to accommodate an increase of student population and demographics. In this way, the school can provide education to students. If the portables are not built, the school cannot accommodate these students under their current structure.
[87] Meaning of “normal” in Black’s dictionary:
Opposed to exceptional; that state wherein anybody most exactly comports in all its parts with the abstract idea thereof, and is most exactly fitted to perform its proper functions, is entitled “normal.”
[88] A portable is built to accommodate CECCE’s student enrolment fluctuations which is part of their normal operations.
[89] It bears repeating that a construction lien on land, which is subject to the lien, is land that has been improved (which is generally capital in nature meaning that there is some permanence) by the work of others and that it would be unfair to permit the owner of that land to benefit from the increased value in the land without paying something (holdback or monies in trust). If the lien is found to be valid and the owner has not paid, then the ultimate remedy is that the land is sold.
[90] Therefore, when a subcontractor supplies equipment to a contractor, without a specific land on which it is to be used, then no lien rights arise. The subcontractor however has a potential claim against the contractor.
[91] If the supply is made to a specific land and is of some permanence, then the subcontractor may have a lien right.
[92] The factor of whether a supply is permanent is an important consideration in determining whether the supply is an improvement. However, the fact that it can be removed from a site is not the sole consideration as stated by Mr. McGuiness in Construction Lien Remedies in Canada as most things can be removed from a site.
[93] The original procurement process of CECCE did not specify where the portables would be located. In this case, OnPoint completed the portables on the school site and OnPoint was aware of the portables’ final destination at the time of the finalization of the building of them portables.
[94] Even though OnPoint was aware of the transient nature of the product that it was supplying, CECCE’s lands were improved in its functionality (to permit more students to attend the school) and consequently an increase in value to the land. This is so even though the portables will no longer be used at the school as a new wing is being added to the school.
[95] In Inesco, Hollingworth J. found that the classrooms were not installations on any land or an improvement because of their portability. In that case, the portable classrooms were assembled in one location and then moved to a site stipulated by the school board and were not manufactured for a specific site. In that case, the classrooms were delivered finished and installed on cement blocks which rested on cement pads.
[96] The court notes that Inesco was an application by the trustee for directions as to whether certain proceeds of sale were trust monies pursuant to s. 8 of the Act. The case was not defended, and the court did not have the benefit of hearing opposing and fulsome arguments on this issue.
[97] The court will review the intention of the parties, the construction of the portables and the building features of the portables. Included in this discussion are the following details: integration into an existing building; whether the structure is marketed on the basis of its portability and the nature of the material.
Intention of the parties
[98] The contract between CECCE and Ty Corp. and the verbal contract between Ty Corp. and make no reference to the Act, lien rights or holdbacks under the Act. The parties did not contemplate lien rights in the contract.
[99] The objective of the portables is to meet the fluctuations in student populations as the portables are temporary solutions and serve a purpose for an undefined time.
[100] The portables were to remain the CECCE’s property, and the CECCE did not intend for the portables to be leased or to be returned to the contractor or OnPoint.
[101] Luc Poulin (Directeur du Service des immobilisations du Conseil Scolaire de District Catholique du Centre-Est de l’Ontario), a manager with the CECCE, stated at the examination for discovery of September 14, 2022, that the CECCE considers the portables to be temporary installations.
[102] From 2021 to 2022, the CECCE moved three portables. In the school year 2022-2023, it moved 11 portables. The portables built by OnPoint, and which are the subject of this litigation, are in the process of being moved and Paul Desmarais will be expanding its school structure.
[103] The portables were commenced being built in Vars by the original contractor to the contract with CECCE but that it did not complete the contract. CECCE then contracted with Ty Corp. to complete the contract.
[104] The contract did not contemplate a retention of 10% holdback which is only required for lienable services. CECCE retained holdback for any portable-related work and this would suggest that CECCE was effectively operating on the basis that the portables were a lienable supply. CECCE indicated that it was done to ensure quality of the work but further details were not provided.
[105] Regarding holdback, the Act provides that:
[106] Pursuant to the Act, payments may be made, without jeopardy, on a contract, or subcontract up to 90% of the price of the services or materials that have been supplied under the contract or subcontract unless, prior to making payment, the payer had received written notice of the lien. Once the payer has received notice, they must hold back the full amount of the lien.
[107] Originally, CECCE retained 10% as a hold back of $34,483 and it incrementally increased to $112,750.20 as 10% of the payments to Ty Corp.
[108] In fact, Luc Poulin, stated that normally before monies are paid out after the receipt of the certificate of payment there is a review of the land abstract to determine if liens had been registered. However, this was not done regularly on this project. (See Mr. Poulin’s answer to Q239 of his discovery of June 2, 2022).
[109] Dominique Diotte, the project manager of CECCE, overseeing this project made four payments to Ty Corp. after two liens were registered on title.
[110] The court finds that this points to an inference that CECCE was operating on the basis that it was a lienable supply.
[111] In my view, the fact that a specific school is not specified in the procurement is not dispositive.
[112] Another consideration with has some relevance is section 20(1) of the Act which states:
[113] Here, there is contractual clause that allows the school to direct where to install them, and they were installed. Also, s. 20(1) allows an owner to enter a single contract for improvements on more than one premises, and a person supplying services or materials may choose to have general lien against all.
[114] Given the above findings, this factor is weighs in favour of finding that the portables are improvements under the Act.
Construction
[115] Portables have an inherent impermanence about them as they can be removed from a school site.
[116] OnPoint had a verbal contract with Ty Corp to construct and install portables for Ottawa schools and a second set for Paul Desmarais school in Stittsville.
[117] The commencement of the construction of the portables was in Vars and completed on school site.
[118] Also, some of the change orders between Ty Corp. and CECCE indicate the school’s name but this is not consistent amongst all the change orders. However, it does show that there was a recognition of the final destination of the portables.
[119] The assembled school portables were delivered from a field on the school site to the part of the school site where they were anchored on 16 concrete pillars. The concrete pads are 24 inches by 24 inches by 8 inches deep, and they are buried in the ground to create a footing to bear new concrete block piers. Two concrete blocks, which are 8 inches by 8 inches and 16 inches deep, are then installed and anchored into the concrete pad with 10-metre dowel and block cores fully grouted together. The wood beam for the portable is anchored to these concrete blocks.
[120] The classroom portables were placed on a specially designed support system prepared by the engineering firm WSP in drawings A100 and S300.
[121] The ground below the classrooms is dug up and gravel is placed in the hole and compacted to 125 KVA, which is more than the normal compaction requirements.
[122] On top of this compacted base, footings are placed. The cement footings also exceed Building Code hardness requirements and, in fact, are harder than cement sidewalks. That does not mean that the portable then becomes an improvement
[123] On top of the footing is a cement pier. The classrooms are secured to the ground by connecting duckbill anchors at each pier and footing.
[124] These supports are specifically designed by WSP, the engineers for these classrooms. A wooden skirt is then placed around the classroom base. There are no wheels under the classrooms.
[125] The school portables are solidly attached to concrete pillars which are partly buried underground.
[126] The portables are also anchored with four duckbill earth anchors which are buried underground at a minimum of 6 feet below finished concrete.
[127] Once the portable is placed on the required concrete pillars, it is anchored into the land.
[128] Portables are built with hydro masts which are wired into hydro poles to receive power like a house. The electrical systems are attached for the duration of the installation to the hydro supply at the place of delivery.
[129] I have considered the following building features:
- A portable contains one classroom;
- Portables have floors, walls, windows and ceilings;
- Stilts were put in the ground to support the structures as shown in drawing A-101;
- Portables have electricity, heating, air ventilation system, insulation and stairs leading to two different entrance doors but no running water or bathrooms; and
- Portables have blackboards and/or whiteboards, lighting systems and storage space.
[130] The portables are used for staff and students to have access to the internet, the school public announcement system and Wi-Fi.
[131] The cement footings remain in the ground after the portable is removed. This is contrasted with foundations built for building structures that go around the perimeter and are dug at least 4 feet deep. These cement footings (or “piliers” as described by CECCE) do not demonstrate a permanence and enhancement to the property.
[132] In his examination for discovery, Moe Berjawi is OnPoint’s President and sole owner since 2017 and his brother Hassan Berjawi is operations manager.
[133] In July 2019, OnPoint had three full time employees and it hired two or three other employees for this project about a week after the project started.
[134] During the construction, OnPoint had continuous contact with architects and engineers and there were regular inspections and approvals from the City of Ottawa. Also, the construction included:
- Gravel compacted to 125kVPA
- Concrete at 35MPA (the Building Code requirements are 32 MPA);
- Footings at 120KPA (the Building Code requirements are 75 KPA);
- Wooden skirts inserted around the portables;
- Duck bill anchors; and
- Electrical wire from the portables to provide hydro-electricity.
[135] The portables are not on wheels.
[136] At his discovery, Mr. Berjawi also testified that:
- There was some urgency to the construction because the CECCE had a deadline for the portables to be built for the students in time for the beginning of the upcoming school year;
- Two employees from Ty Corp also worked on building the portables; and
- The portables being built by OnPoint were transported from Vars to Paul Desmarais school in Stittsville by a flatbed tow truck. The transportation was arranged and completed by a third party.
[137] Mr. Berjawi’s answers below set out the construction process.
Q 580 – You were not responsible for making arrangements to have those portables delivered to the schools where they were going to be installed?
A – No.
Q 581 – You were not responsible, once those portables were delivered to a school in halves, to put those two halves together?
A – Not at other schools, no, but at Stittsville, yes.
Q 582 – Okay. But Stittsville was a site that was obtained where you could actually do the building of the portables. Correct?
A – No, the portables were actually – some of them were actually installed there.
Q 583 – Just so that I’m clear; you said that you completed 10 portables in Stittsville. Was this at a school?
A – Yes.
Q 584 – What school? What was the name of the school?
A – Paul-Desmarais, École catholique Paul Desmarais.
Q 585 – Just so I’m clear, 10 incomplete portable classrooms were delivered from Vars to Paul Desmarais, and you completed those at Paul Desmarais?
A – Yes.
Q 602 – Now, just so we are clear, is it your evidence that you, OnPoint – some of the portables, you put the two halves together. Is that your evidence?
A – Yes.
Q 603 – Okay. You will agree with me that at no point did you install that portable where it was supposed to go in the schoolyard, where it would be used as a portable classroom.
A – Correct.
Q 604 – Now, your firm had nothing to do with either the transportation or the installation of any of these portable classrooms to a site outside of the Paul Desmarais.
A – Correct.
Q 605 – And, then, at Paul Desmarais school, you finished the building of these portable schools, but you were not involved in the actual installation of the school, where it would physically rest, to be used by the students?
A – Correct.
[138] The portables were moved to the field at the school site, and the two halves were put together on the field.
Q 862 – So, you came in and you finished the work on the portables in the parking lot. Someone else then took those portables, they installed them and put them together in the field, where they were to be, and you came in after – you being OnPoint – and you did the finishing touches that you described to me earlier.
A – yes.
[139] In the field, they were put on stilts as this was a temporary location for the portables.
[140] Mr. Berjawi’s answer at Q 865 regarding the stilts was:
A – There were metal stilts that were manufactured to support the temporary work of the portables. So, they had a wider base, and then we had, approximately – I don’t recall how many, but one at each corner and one in the middle. So maybe six to eight.
[141] Documents filed including from Marc Zion for the intervenors which built similar portables show that:
- Drawing NO. SK2, page 3 show 24x24x8 inches concrete pads buried in the ground to create a footing to bear new concrete block piers. This is completed for each portable.
- Two concrete 8x8x16 inches concrete blocks are then installed and anchored into the concrete bed with 10 metres dowel and block cores fully grouted together. The wood beam for the portable is anchored to these concrete blocks.
- The portables are solidly attached to concrete pillars, which are partly buried underground.
- Portables are also anchored with four duckbill earth anchors which are buried underground a minimum 6 feet below the finished concrete.
[142] In response to Mr. Zion’s affidavit, Mr. Luc Poulin, manager at the CECCE stated that cement pillars and duckbill earth anchors can remain even if a portable is moved to allow another portable to be put in its place. Since the cement pillars are mostly above ground, and hence exposed to cold and hot temperatures, it is important that the cement be of the highest quality.
[143] The duckbill anchors are also known as hurricane anchors. These are installed because the portables have minimal attachment to the ground, and they prevent damage from hurricanes, tornadoes or strong winds.
[144] Luc Poulin’s evidence at his discovery confirms that:
- There was no foundation on the portables;
- The CECCE sometimes uses the word “classe mobile” or “portative”;
- He did not call them footings in his examination;
- The supports are not in any certain depth in the soil, the support is on the surface;
- He would not admit that 120 KPA is more than the building code requirements and did not know that normally the bearing capacity for footings and foundations of a house is only 100 KPA;
- He called the stilts “des petit piliers temporaires” and did not wish to call them footings;
- Duck bill pipe anchors are not necessary for permanent structures but are for portables;
[145] Mr. Poulin stated that the portables are not anchored on “des piliers de béton”, rather they are “deposée sur des piliers de béton et l’ancrage se fait au sol avec ce qu’on appelle des ancrages métalliques avec une tige de file de fer… Ils sont supportés sur le sol. Il n’y a pas d’ancrage, les piliers ne sont pas ancrés au sol… Le plan démontre une installation qui peut être sous le niveau du sol, mais dans la pratique, ils peuvent être déposés par-dessus le sol si en autant la capacité portante, elle est suffisante”.
[146] The undertaking from the CECCE’s architect, Vincent Renaud, explained that the portables are assembled on a field or school yard “sur des petits piliers temporaries [pier] en ciment. Ce ne sont pas des ‘footings’”.
[147] He stated that “Footings fait référence à une fondation en béton. Sur les dessins pour l’installation (l’onglet 10), tout peut être décrit comme la ‘fondation’. Une semelle ponctuelle (footing) c’est-à-dire un seul bloque de ciment, est la partie horizontale sur laquelle repose le pilier bloque de ciment (pier) qui est la partie verticale sur le dessin.”
[148] As stated earlier, OnPoint joined the two halves of the portables on the school site. OnPoint completed the finishing touches to the portables once they were installed in their final location.
[149] Removal of a portable is not at simple task and requires machinery and trucks. It is expensive, but according to Mr. Poulin it is not as expensive as paying for a new portable to be built.
[150] The construction of the portables is a factor which weighs in favour of a finding that the portable was an improvement.
The Installation
[151] The transportation and installation of the remaining portables was completed by another contractor. OnPoint completed some of the finishing work, including the installation of stairs and window casings, on the school site supports the lien but they knew they could and likely to be moved from site to site. The details of the installation confirm that OnPoint was aware of the mobility of the portables.
[152] In my view, the concept of the lien is rooted in adding value or utility to the land. There is a direct connection/attachment between the work performed to construct and erect/install the portables and enhancing the utility of the school. The portables were partially built on-site and positioned on concrete pads, with servicing done.
[153] It seems to me that if the supply of pre-fabricated stairs, doors or windows (i.e., manufactured/built off-site and delivered to the site for installation) is a lienable supply, then the work for the portables should be “construction, erection or installation on the land”
[154] The installation of the portables involves the following:
- If the portable will be located on grass or gravel, then the workers need to prepare the base by digging this out and replacing it with an embankment made of crushed rocks;
- Install cement pillars (OnPoint called them ‘footings’);
- Place the portables on the cement pillars;
- Arrange for an electrician to connect the portable to the school’s electrical system;
- Install the skirt around the portable and paint the skirt to block access to underneath the portable;
- At times, a school property may already have portables and the pre-existing portables may need to be moved to allow the installation of new ones; and
- When a portable is transferred to another destination, the cement pillars are removed and the surface is returned to its original state.
[155] This factor weighs in favour of finding that the portable is an improvement.
Building Features
[156] Ultimately, the case law on modular prefabricated structures suggests that the availability of lien rights on prefabricated modular buildings turns on the nexus between the structure and its connection to the specific lands. Specifically, the court should consider whether the portable (a modular prefabricated structure) that was built with no particular end destination or that can be moved around at will is a chattel.
[157] If a structure is manufactured with no particular end destination in mind, it is considered a chattel that can be moved around at will. However, lien rights will exist where the structure is manufactured for specific land or in respect of a specific construction project.
[158] Pursuant to the nexus test, the supply of services or materials will give rise to lien rights where the construction parties and, particularly, the owner considers the subject services or materials necessary for the completion of the project, as well as where the services or materials benefit the majority of the contractors and subcontractors.
[159] The portable adds utility to the school. It enables the school to receive further student population without the expense of expanding the school building.
[160] This factor weighs in favour of a finding that the portables are improvements
Conclusion
[161] In conclusion, the court finds that the portables built for the Paul Desmarais School are improvements and are lienable.
[162] As stated by McGuiness above: “Modern engineering techniques permit virtually every structure to be removed from one site and re-assembled elsewhere.”
[163] The mere fact that it is moveable is only one consideration.
[164] In my view, the installation of the portable has caused a sufficient change so that its installation has enhanced the value and utility of the school itself.
[165] As discussed above, the fact that the portable had not become completely or irreversibly affixed to the land on which it sits is not necessarily conclusive of the question of whether the premises have been improved.
[166] The court has considered that there is some attachment to the premises as described above. A reasonable person would consider the premises to have been improved as a result of the installation of the portables.
[167] The intent of the Act and its predecessors is designed to ensure subcontractors as those involved here, can be paid for their services and allows them to seek relief by a specific process set out in the Act against the owner. The owner is responsible to holdback 10% under the Act. In this case, CECCE did holdback certain funds although it may not be 10% paid to Ty Corp.
[168] At para. 42 in Kennedy, the Court of Appeal considered as an important fact that the assembly line had been built and disassembled before being transported to the location for installation. It also commented that: “[w]hile a different judge may have come to another conclusion on the issue of portability, I am satisfied that it was open to the trial judge to reach the conclusion that he did.”
[169] In 3726843 Canada Inc. v. 879115 Ontario Ltd., the court could review “all of those circumstances the materials were intended and acted as an improvement to the building, or on the other hand, as an improvement and integral aspect of the business conducted therein.”
[170] Boomers is distinguishable as the modular units were not intended to be moved on a regular basis. The modular units improved the land as the motel was functioning only because of the modular units.
[171] In Hanks, a plumber completed the work. The work did not have a connection to the land but only to the modular company’s construction inventory and the plumber was not entitled to a lien. Therefore, although the modular company would have a lien, the supplier of the plumbing would not. The plumbing supplier did not have the intention of improving that specific land. The similarities in this case is that CECCE could direct Ty Corp to place the portables wherever CECCE wanted.
[172] In Aspen Lumber, there was a supply of specific condominium sections for a specific condo project and there was an improvement of land and it increased the value of the land. It was constructed for a specific site to someone in the construction chain and added value of some permanence to the land.
[173] The portables were intended for a particular school and were intended to be an important aspect of what CECCE was in the business of doing and their obligation to do, that is, educating children.
[174] CECCE argued that they could not possibly check title registries on a regular basis to ensure liens are not registered by subcontractors when there is construction of portables on their properties. Why should CECCE be relieved from this duty that is imposed on any owner requiring work on their premises? In this particular case, CECCE knew the destination of the portables built by OnPoint as they were being constructed on the school property. There is a connection to the lands. Also, all land registry title is accessible on line through Terraview by authorized persons and therefore searching title is not an onerous task.
[175] OnPoint has satisfied its onus to show that it had a lienable interest.
Unjust Enrichment
[176] Unjust enrichment requires:
- That CECCE was unjustly enriched;
- At OnPoint’s deprivation; and
- There is no juridical reason for the enrichment.
[177] OnPoint has not put its best foot forward and marshalled the evidence that support their claim for unjust enrichment and its legal requirements.
[178] The court can make appropriate findings and apply the law based on the complete record before it.
[179] OnPoint’s claim for unjust enrichment is dismissed because:
- The CECCE has not been enriched but on the contrary it was in a position of loss vis-a-vis Ty Corp as after the termination of the contract with Ty Corp, the CECCE had to incur another $380,000 plus HST to buy four further portables.
- The CECCE contracted with Ty Corp. A contract between an owner and a general contractor is considered a juristic reason: see Tremblay v. 1839563 Ontario, 2020 ONSC 1316, at paras. 56-57; J. Lepera Contracting Inc. v. Royal Timbers Inc., 2016 ONSC 2909 (Div. Ct.), at paras. 37-40. The CECCE had no obligation towards OnPoint.
[180] Accordingly, this claim is dismissed.
Costs
[181] OnPoint, as the successful party, is presumptively entitled to costs.
[182] If the parties cannot agree on the issue of costs, OnPoint must provide their two-page costs submissions along with any offers to settle and bill of costs by April 3, 2023. The intervenors must provide their two-page costs submissions along with any offers to settle and bill of costs by April 17, 2023. The CECCE must provide their two-page submissions along with any offers to settle and bill of costs by May 1, 2023. OnPoint and the intervenors may provide their one-page reply by May 8, 2023.
Justice A. Doyle Date: March 20, 2023