COURT FILE NO.: CV-19-624030 DATE: 2023 10 13 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended

BETWEEN:

SYMTECH INNOVATIONS LTD.

E. Bisceglia and B. Frino, for the plaintiff Plaintiff / Defendant by counterclaim

• and -

THE TORONTO TRANSPORTATION COMMISSION, TORONTO TRANSIT COMMISSION, TORONTO TRANSIT COMMISSION (formerly The Toronto Transportation Commission) and SIEMENS CANADA LIMITED/SIEMENS CANADA LIMITÉE

C. Stanek, for the defendant, Siemens Canada Limited/Siemens Canada Limitée Defendants / Plaintiffs by counterclaim

HEARD: January 11-12, 2023 (by videoconference)

Reasons for Judgment (Summary Judgment)

Robinson A.J.

[1] Siemens Canada Limited/Siemens Canada Limitée (“Siemens”) moves for summary judgment seeking a declaration that Siemens’ liability to Symtech Innovations Ltd. (“Symtech”) is limited to admitted holdback and dismissing the balance of Symtech’s claim, with costs. Symtech opposes the motion on the basis that there are genuine issues requiring a trial.

[2] The parties’ dispute arises from Siemens’ supply of a building automation system as part of a Toronto Transit Commission (“TTC”) project known as the Duncan Shop Ventilation Upgrade, Supply and Install Monorail Crane, and Bus Hoist Replacement Phase 1. The project appears to have involved upgrading HVAC systems and installation of a crane at the W.E.P. Duncan Building bus maintenance facility in Toronto. Black & McDonald Limited (“B&M”) was awarded the contract for the project. B&M subcontracted Siemens to supply and install the building automation system.

[3] Siemens sub-subcontracted Symtech to perform the installation work for the building automation system. The components for the system were supplied by Siemens. Siemens issued a fixed price purchase order to Symtech, which is undisputed to form part of their sub-subcontract. Symtech’s total base sub-subcontract price was $583,059 plus HST. Siemens approved changes that increased that price to $664,981.89, plus HST.

[4] There is no dispute that the project was delayed. Symtech is not alleged to have caused any of the delay. Symtech takes the position that it was seriously impacted in its work by ongoing delays and disruptions during the project. Symtech has preserved and perfected a lien for $915,934.28. It commenced this action seeking to enforce that lien and claiming against Siemens in breach of contract. A parallel breach of trust claim has also been commenced, but is not part of the reference before me. Symtech’s lien was vacated by Siemens upon posting security of $965,934.28 by way of lien bond. A third party claim has been brought by Siemens seeking contribution and indemnity from B&M for Symtech’s claim.

[5] Based on Symtech’s Scott Schedule, its claim has been recalculated to $859,942.49. The claim consists of unpaid amounts allegedly owing under the sub-subcontract and a significant “prolongation claim” seeking compensation for the alleged delays and disruptions in Symtech’s work on the project.

[6] Siemens acknowledges liability to Symtech, but only for unpaid statutory holdback of $66,315.01. Siemens argues that holdback only became due when B&M and Siemens settled their own dispute and B&M made final payment to Siemens. Siemens further that the holdback funds are now subject to set-off for Siemens costs of this action. Siemens submits that there is no genuine issue for trial on its liability for Symtech’s prolongation claim because, among other arguments, there was no breach of contract by Siemens and Symtech failed to provide contractually required notices. Symtech disagrees. It argues that there are genuine issues requiring a trial on Siemens’ alleged breaches of the sub-subcontract, whether notice of Symtech’s claim was required, the timeliness of Symtech’s notice, waiver of any notice requirement, and Symtech’s entitlement to and quantification of its prolongation claim.

[7] I find that there are genuine issues requiring a trial on whether Siemens breached the sub-subcontract and the quantification of the amounts claimed by Symtech. I am satisfied, though, that there are no genuine issues for trial on the dispute over notice of Symtech’s prolongation claim. I find that there was a contractual notice requirement, that Symtech failed to provide timely notice of its prolongation claim, and that Siemens did not waive the requirement or accept Symtech’s claim. That is dispositive of the entire prolongation claim.

[8] Since I am seized of all remaining steps in this lien reference, including the ultimate trial, it is appropriate to grant partial summary judgment. I am accordingly dismissing Symtech’s prolongation claim as being barred by contract and directing that the remaining issues proceed to trial, including whether Siemens breached the sub-subcontract and the quantum of earned and unpaid amounts still owing to Symtech under it. I decline to grant any judgment in Symtech’s related breach of trust action.

Analysis

[9] Siemens does not dispute that Symtech’s total subcontract price, including approved changes, was $751,429.53 ($664,981.89 plus HST). Its position is that the only unpaid amount owing to Symtech is $66,315.01, representing unpaid holdback.

[10] Symtech’s claim is comprised of two aspects: claimed unpaid contract funds and its prolongation claim. The latter claim, which is the central dispute in the action and on this motion, is comprised of amounts for lost productivity; additional direct labour, supervision, and safety representative costs; extended duration site overhead; additional storage and handling costs; and disruptions due to re-sequencing of work. Costs are claimed for impacts from lack of design coordination; the volume of requests for information, site instructions, and change directives; delayed work; schedule extensions; site disruptions; material handling; and work area access restrictions.

[11] The core dispute on this motion is whether there is a genuine issue requiring a trial on Symtech’s entitlement to pursue its prolongation claim against Siemens. Distilling Siemens’ arguments, Siemens submits that there is no genuine issue requiring a trial because:

(a) Symtech’s prolongation claim does not comply with the notice requirements of the sub-subcontract;

(b) Siemens did not cause any delay to Symtech’s work, so cannot be held liable for Symtech’s delay-related losses;

(c) Symtech’s alleged prolongation losses and damages are not connected to any specific event(s) of delay;

(d) Symtech’s prolongation claim is based on a global claim for costs incurred based on Symtech’s projected hours, despite the parties having a fixed price contract; and

(e) Siemens did not breach the sub-subcontract and the only unpaid balance owing to Symtech is holdback funds that were not due or payable by reason of a pay-when-paid clause and are now subject to Siemens’ set-off rights.

[12] I have considered if there is a genuine issue requiring a trial based on each of these grounds.

Legal Framework for Summary Judgment

[13] Pursuant to s. 87.3(1)(a) of the Construction Act, RSO 1990, c. C.30, Symtech’s lien and this action are governed by the Construction Act as it read on June 29, 2018 – i.e., the former Construction Lien Act (the “CLA”). The CLA is remedial legislation intended to provide security for work and materials provided in construction projects and a relatively inexpensive and expeditious process to resolve related disputes. The legislation is to be implemented procedurally in such a way as to advance the objective of providing a summary and inexpensive remedy: R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111 (Div Ct) at para. 23.

[14] Summary judgment is not a process provided in the CLA. Pursuant to s. 67(2) of the CLA, interlocutory steps not provided for in the CLA first require consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute. The parties resolved their dispute over leave for Siemens to bring this motion and leave was previously granted on consent.

[15] Subrule 20.04(2)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) provides that summary judgment is to be granted where the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. There will be no genuine issue requiring a trial if I am able to reach a fair and just determination on the merits based on the record before me. That will be the case where this process allows me to make the necessary findings of fact, allows me to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7 at para. 49.

[16] A two-stage assessment has been established for deciding summary judgment motions, which is set out by the Supreme Court of Canada in Hryniak at para. 66.

[17] At the first stage, I am required to determine if there is a genuine issue requiring a trial based only on the evidence in the record before me. I make that determination without using the fact-finding powers provided in subrules 20.04(2.1) and (2.2), which allow evidence to be weighed, credibility to be assessed, inferences to be drawn, and further oral evidence. If I find that the evidence required to fairly and justly adjudicate the dispute is available on the record and summary judgment is a timely, affordable and proportionate procedure, then I may grant summary judgment.

[18] The second stage is triggered if I find that there appears to be a genuine issue requiring a trial. I must then determine if the need for a trial can be avoided by using the discretionary powers under subrules 20.04(2.1) and (2.2). Although those powers are not ordinarily available to an associate judge, the Divisional Court has confirmed that I do have access to them on this motion, since it is brought within a reference under s. 58 of the Construction Act: R&V Construction, supra at para. 23. Those powers are only to be used if doing so is not against the interest of justice, meaning that using them 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.

[19] Evidentiary requirements for this motion are set out in rule 20.02 of the Rules and clarified in case law. Despite the shift in the approach to summary judgment motions set out in Hryniak, case law has continued to hold that the evidentiary requirements remain unchanged. Both sides are required to “put their best foot forward” and “lead trump or risk losing”. The moving party has the initial burden of proving there is no genuine issue requiring a trial for its resolution. Once demonstrated, the burden shifts to the responding party to show that its claim has a real chance of success. Subrule 20.02(1) expressly sets out that a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. A responding party may not defeat the motion by pointing to more or better evidence that will or may be available at trial: Huntjens v. Obradovic, 2022 ONSC 2629 at para 104; Dia v. Calypso Theme Waterpark, 2021 ONCA 273 at paras. 24-26; Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 206.

[20] Generally, the court is entitled to assume that the record contains all of the evidence that the parties would present at trial. There are exceptions, though, such as documentary evidence from third parties or testimony from non-party witnesses that is not reasonably available on the motion: Sweda Farms, supra at para. 27; Dia, supra at para. 26.

[21] In deciding a summary judgment motion, the court must “take a good hard look at the merits” to determine whether there is a genuine issue of material fact or law requiring a trial for its fair and just determination: Summa Engineering Limited v. Selectra Contracting Ltd., 2017 ONSC 6380 at para. 25, aff’d 2018 ONSC 5733 (Div Ct).

Preliminary Matter: Challenge to Siemens’ Evidence

[22] Symtech challenges admissibility of Siemens’ evidence for this motion, namely the affidavit of a lawyer and Siemen’s reliance on the transcript from the examination for discovery of Siemens’ own representative.

[23] Subrule 20.02(1) of the Rules provides that an affidavit for use on summary judgment motion may be made on information and belief as provided in subrule 39.01(4), but the court is entitled to draw an adverse inference from a failure to provide the evidence of any person having personal knowledge of contested facts. Symtech argues that the lawyer’s affidavit is captured by this subrule, since she has no personal knowledge of the underlying dispute.

[24] The combination of subrules 39.04(1)-(2) and 31.11(1) is that a party is precluded from using in evidence on a motion its own examination for discovery, unless the other party consents, but may use an adverse party’s discovery evidence. Symtech argues that Siemens’ affiant, Sergey Antonov, whose affidavit appends extracts from Siemens’ examination for discovery, has contravened the bar against using a party’s own discovery evidence.

[25] No case law has been specifically cited by Symtech in support of either of its challenges. I reject both arguments.

[26] The lawyer’s affidavit is factual in nature. It confirms procedural history, puts Symtech’s Scott Schedule into evidence, offers a summary of the three claims raised in the Scott Schedule that remain in dispute (an accurate summary based on this motion), and then proceeds to append and summarize transcript extracts from the examinations for discovery of Bruce Mackie (Symtech’s representative) and Lucio Drumond (B&M’s representative). I find nothing objectionable about the affidavit, other than a fairly minor matter with the discovery evidence.

[27] Subrule 39.04(1) permits Siemens to use an adverse party’s discovery evidence as permitted by rule 31.11, with necessary modifications. Discovery evidence from Symtech and B&M has been tendered as an exhibit to an affidavit rather than by read-ins. In my view, that is a matter of form, not substance. I accept that the lawyer’s summaries of the discovery evidence are objectionable. However, even if I were to strike those summaries, I would not preclude Siemens from using the discovery transcripts. It is entitled to use them. I have, though, given the lawyer’s summaries of the discovery evidence no weight in my decision. The balance of the affidavit deals with procedural history. No adverse inference is properly drawn under subrule 20.02(1).

[28] With respect to Siemens’ use of its own discovery evidence, in my view, the manner in which it has been used is not a violation of subrule 39.04(2). The Court of Appeal has previously commented that the policy underlying subrule 39.04(2) is that parties wishing to rely on their own evidence on a motion ought not to be able to avoid full cross-examination by using their own examination for discovery instead of providing an affidavit: Lana International Ltd. v. Menasco Aerospace Ltd. at para. 20 (cited in Dia, supra at para. 14).

[29] In this case, Siemens’ discovery evidence was not tendered as standalone evidence on the motion. That would have been contrary to subrule 39.04(2). Instead, Siemens’ discovery evidence was incorporated by reference into the affidavit of Sergey Antonov. Mr. Antonov was Siemens project manager from May 2018 to completion of the project. He is the individual who was examined for discovery on behalf of Siemens. The discovery evidence was his evidence on behalf of Siemens. It has not been tendered in a manner that avoids cross-examination. To the contrary, it was open to Symtech to cross-examine Mr. Antonov on his affidavit and, in the course of that examination, on his prior discovery evidence that was incorporated by reference into his affidavit. Symtech did cross-examine Mr. Antonov.

[30] In these circumstances, I find no basis for Symtech’s objection to either affidavit being admitted and considered, except to the extent of the lawyer’s summaries of the discovery evidence of Symtech and B&M.

Issue 1: Notice Requirement Under Subcontract

[31] Siemens primary position is that Symtech failed to comply with the mandatory notice provisions under the sub-subcontract and, as a result, is contractually barred from advancing its prolongation claim. Symtech disagrees, arguing that there was no requirement to provide notice, but that it provided timely notice of its claim for compensation in any event. Alternatively, Symtech argues that Siemens waived any requirement for notice by submitting a joint claim to B&M on behalf of both Siemens and Symtech. Symtech essentially submits that a trial is required to resolve whether notice is required and, if so, whether proper notice of Symtech’s claim was provided or whether the notice requirement was waived.

[32] A trial is not required to decide the notice issues. The record before me is voluminous, including discovery evidence, sworn affidavit evidence, cross-examination evidence, and expert evidence. There is ample evidence to fairly and justly decide whether notice of the claim was required by the subcontract and, if so, whether Symtech provided it. I am reinforced in my view that a trial of the notice issues is not required given the mandate in s. 67(1) of the CLA that the procedure in a lien action be as far as possible of a summary character.

[33] As discussed below, I find that there was an express contractual requirement for Symtech to give written notice of its claim for compensation. I further find that Symtech failed to give proper and timely notice of its claim in compliance with the sub-subcontract terms and that Siemens did not waive the requirement. Non-compliance with the contractual notice provisions is a complete bar to Symtech’s claim.

(a) Did the Subcontract Require Symtech to Give Notice of its Claim?

[34] There is no issue requiring a trial on whether the sub-subcontract between Symtech and Siemens required notices from Symtech of delay and of its prolongation claim. It does.

[35] The parties agree that there are two relevant contract documents governing the relationship between Symtech and Siemens: the purchase order between the parties and the stipulated price subcontract between B&M and Siemens. The latter does not appear to be expressly referenced in the purchase order, but both parties agree it is incorporated. Symtech points to SCC 3.4.1.2 of the B&M/Siemens subcontract, which required Siemens to incorporate the terms and conditions of that subcontract into all contracts or written agreements with sub-subcontractors. That incorporation is not disputed. Symtech made numerous submissions in oral argument that the terms of the B&M/Siemens subcontract were incorporated into the Siemens/Symtech sub-subcontract.

[36] Given the foregoing, I have assessed notice requirements under the sub-subcontract on the basis of the purchase order and the terms of the B&M/Siemens subcontract comprising the Siemens/Symtech sub-subcontract.

[37] I agree with Symtech that the terms of the B&M/Siemens subcontract support Symtech’s entitlement to claim compensation for delays in its work. SCC 6.5.1 expressly provides for reimbursement for reasonable costs incurred as a result of delay. The scope of that reimbursement is limited by SCC 6.3.1 (added by SC 12 of the supplementary conditions), which provides as follows:

6.1.3 Notwithstanding anything in this Subcontract, Subcontractor shall be entitled to receive no adjustment to Subcontract Price and Subcontract Time for anything set out in this Part 6 that is greater than Contractor actually receives from Owner pursuant to the Prime Contract, other than for delays wholly caused by the Contractor. Contractor agrees to use commercially reasonable efforts to present Subcontractor’s claim for adjustments to Owner.

[38] In context of being incorporated into the Siemens/Symtech sub-subcontract, the foregoing operates such that Symtech’s entitlement to additional compensation or extensions in contract time cannot be greater than what Siemens actually receives from B&M, except for delays wholly caused by Siemens. Symtech argues that it captures delays caused by either Siemens or B&M.

[39] The purchase order contains two relevant terms, as follows:

3. DELIVERY SCHEDULE Supplier shall comply with the schedule of Siemens and shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Siemens’ delivery schedule. […]

4. DELAY IN DELIVERY Time is of the essence. Supplier shall ensure that delivery is made in all respects in accordance with the Order and delivery schedule of Siemens. Supplier shall forthwith advise Siemens of any anticipated delays. […]

[40] Symtech argues that there is triable issue on whether the above terms apply since they refer to “delivery”. Symtech submits that it was not delivering anything, but rather was performing installation work. There is no genuine issue requiring a trial. The purchase order expressly identifies the required installation work under “Material Description” and includes a “Delivery Date” of May 31, 2017. The preamble to the terms and conditions expressly provides that they apply to “any product, including equipment, and services” (emphasis added). I am unconvinced that installation services are not “delivered” or that there is any genuine ambiguity about the above terms applying to Symtech’s installation services.

[41] Also relevant to the parties’ dispute are the following notice provisions in the subcontract conditions in the B&M/Siemens subcontract:

6.5.4 No extension shall be made for delay unless Notice in Writing of the cause of delay is given to the Contractor not later than 7 Working Days after commencement of the delay. In the case of a continuing cause of delay only one Notice in Writing shall be necessary.

6.6.1 If the Subcontractor intends to make a claim for an increase to the Subcontract Price, or if the Contractor intends to make a claim against the Subcontractor for a credit to the Subcontract Price, the party that intends to make a claim shall give timely Notice in Writing of intent to claim to the other party.

[42] I am satisfied that Siemens has met its onus regarding the existence of a contractual notice requirement. I find no genuine issue that the above terms from both the purchase order and the B&M/Siemens subcontract form part of the Siemens/Symtech sub-subcontract. The combination of the above clauses puts several obligations on Symtech. The purchase order terms contain a general requirement for Symtech to comply with the “schedule of Siemens” and to “forthwith” advise Siemens of any anticipated delays. The incorporated B&M/Siemens subcontract terms add two separate notice requirements: (i) providing notice in writing if seeking an extension for delay not later than seven working days after the commencement of a delay, and (ii) providing “timely” notice in writing of an intent to claim for an increase to the sub-subcontract price.

[43] An extension in contract time has not been sought by Symtech and is not a disputed issue in this litigation. SCC 6.5.4 in the B&M/Siemens subcontract accordingly has no bearing on the parties’ notice dispute. The remaining two notice obligations remain relevant. I find that Symtech was obliged to “forthwith” advise Siemens of any anticipated delays to the “schedule of Siemens” and was further obliged to provide “timely” notice in writing of its prolongation claim.

[44] Symtech relies on evidence from Bruce Mackie, who was Symtech’s foreperson on the job. Mr. Mackie’s affidavit notes that the purchase order states, “PO kick off meeting is required with notes to be attached to the PO.” He suggests that oral evidence will be required to determine what occurred at the kick off meeting, observing that the notes have “not yet been identified.” In my view, this bald speculation does not raise any genuine issue requiring a trial. There is no evidence from either side on what occurred at the kick off meeting or how it would reasonably impact contractual notice obligations under the sub-subcontract. Sergey Antonov’s uncontested evidence is that neither party attached meeting notes to the purchase order.

(b) Did Symtech Provide Timely Notice of Alleged Delays?

[45] I am satisfied that there are genuine issues requiring a trial on whether Symtech complied with its obligation to “forthwith” provide notice of delays. No schedule was included with the purchase order, so what was intended to comprise the “schedule of Siemens” at the time is unclear. It is undisputed that project schedules were maintained by B&M and that only two schedules were provided to Siemens in the course of the project: a baseline schedule dated April 17, 2017 and Schedule #15 dated July 5, 2018. Both post-date issuance of the purchase order. The record supports that Siemens provided both schedules to Symtech.

[46] Symtech has identified various emails, letters, and discussions that support notice of delays. Unlike the B&M/Siemens subcontract terms, the purchase order language does not require notice in writing. Ultimately, though, I need not address this issue in any detail. Whether or not there was proper and timely notice of delays is less significant than whether there was “timely” notice of Symtech’s prolongation claim as required by SCC 6.6.1 of the B&M/Siemens subcontract terms as incorporated into the Siemens/Symtech sub-subcontract. If there was no “timely” notice of that claim, whether or not Symtech gave notice of its delays and the impact, if any, of doing so or not doing is rendered moot.

(c) Did Symtech Provide Timely Notice of its Prolongation Claim?

[47] Notice provisions in construction contracts are strictly enforced by courts, particularly for commercial construction projects where both contracting parties are sophisticated. The purpose of binding notice provisions is to provide the other party with sufficiently detailed information to allow it to consider its options and take corrective action before the contractor pursues a claim: Tower Restoration v. Attorney General of Canada, 2021 ONSC 3063 at para. 25; Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597 at para. 47. Compliance with a notice provision has been held to be a condition precedent to maintaining a claim in the courts, even if the provision does not contain a “failing which” clause: Elite Construction Inc. v. Canada, 2021 ONSC 562 (aff’d 2021 ONCA 803) at para. 67.

[48] Siemens position and evidence is that neither its project manager, Sergey Antonov, nor anyone at Siemens were made aware of a potential claim by Symtech for additional delay-related compensation until January 2019. Mr. Antonov’s unequivocal evidence is that Symtech provided no notice of any costs impacts resulting from delays prior to January 2019. In his affidavit, Mr. Antonov points out that even Symtech’s notice letter dated January 17, 2019 did not set out any specific periods of delay or amounts associate with any particular period. His cross-examination was consistent. He stated that Symtech was “in the field, but did not flag any concern that they would not meet the schedule, or they had incurred significant costs that they would like to claim.” His affidavit gives further evidence that, even after receiving Symtech’s additional costs compensation request, Siemens never agreed with Symtech’s position. He asserts that Siemens disagrees that Symtech is entitled to any amounts other than compensation for work performed under the Siemens/Symtech sub-subcontract.

[49] Symtech’s position is, essentially, that there is no evidence supporting that Symtech knew it was suffering losses before December 2018, which raises a genuine issue requiring a trial. I agree that there is a genuine issue on when Symtech knew it was suffering losses for which it was entitled to make a claim and when it ought to have given notice, but in my view it is not an issue requiring a trial. I am satisfied that I able to reach a fair and just determination on the merits based on the record before me.

[50] Symtech’s position is that its work was delayed from the outset. Mr. Mackie’s evidence is that Symtech mobilized to site in early 2017, but could not start work until February 2018 because of delayed roof reinforcing work. He states that the issue not only delayed the project, but also caused the project “to be carried out in an ad-hoc manner lacking proper sequencing that would be required for Symtech to efficiently do its work.” Mr. Mackie also notes other delays impacting Symtech, such as late HVAC component deliveries and design problems. He specifically refers to additional time inefficiencies in Symtech’s work being caused by Symtech having to store materials and equipment half a kilometre away from its work areas.

[51] Symtech has retained an expert, William Jason Dearness, to assess project delay and the impacts to Symtech. Mr. Dearness concludes in his report that there was a significant resequencing of Symtech’s planned activities and the execution of activities. He opines that Symtech did not have any reliable schedule to plan and execute its work. He also opines that the baseline schedule did not comply with staging requirements in the specifications, which would have caused Symtech to expend additional working hours to complete its work even in the absence of other delays and disruptions. Mr. Dearness’ report supports that Symtech was suffering losses well prior to December 2018.

[52] Siemens points out that Mr. Dearness confirmed during his examination for this motion that he had seen nothing that would qualify, in his view, as a notice in writing of delay. He did observe that there were “certainly indications of delay in the e-mails and correspondence.” Regardless, Mr. Dearness view on whether there was a notice of delay is not dispositive of anything. That is a disputed issue in this litigation that I must determine myself.

[53] Throughout the period of early 2017 to February 2018, B&M issued various notices of delay to TTC. Symtech submits that Siemens did not keep it apprised of the issues between B&M and TTC. Even if I were to accept that position, it does not assist Symtech. The core disputed issue is not about Siemens’ or B&M’s knowledge of project delays. It is about whether Symtech knew it was suffering losses and gave notice of its claim for compensation.

[54] Evidence supports that project delay was certainly clear by July 2018, when Siemens provided Symtech with Schedule #15. By that time, Symtech had been on the job since February 2018. It is undisputed that Schedule #15 showed significant delay in the project in comparison to the baseline schedule. Nevertheless, despite Schedule #15 being received and provided to Symtech in July 2018, no claim was made and no notice of claim was given by Symtech.

[55] By October 2018, Symtech was actively seeking additional compensation, but for extras, not delay-related losses. In particular, Symtech pushed to have the purchase order price increased to reflect Symtech’s quote for shift work, which had not been included in the purchase order. Siemens did issue several change orders to Symtech, including a change to increase the subcontract price to account for the shift work premium.

[56] Specifically, on October 24, 2018, Symtech’s new project manager, Leonid Zaidentrumf, sent an email in which he advised Sergey Antonov that he had been given “a pretty harsh mandate from upstairs to get a resolution to anything that was left on auto-pilot on this job”. Despite listing a number of concerns to be addressed, delay on the job and associated cost impacts is not mentioned.

[57] Bruce Mackie’s affidavit suggests that discussions in December 2018 support that Siemens agreed that Symtech was entitled to make a claim for delay. In particular, Symtech relies on an email exchange on December 7, 2018, which Mr. Mackie suggests involves discussing the issues on site and building a defence in order to prepare a claim. I was directed to parts of the email during oral submissions. Having reviewed the email in full, it does not support notice of a claim by Symtech.

[58] The email exchange begins with an email from Bruce Mackie providing an update on the status of Symtech’s work. Sergey Antonov responds with a direction to “keep focus” on meeting the next milestone, noting that penalties for the next milestone would be higher. Mr. Antonov indicates that they should be documenting when something is not ready and complete work if everything is ready. Leonid Zaidentrumf confirms agreement with Mr. Antonov, confirms that Symtech will “keep on top of our progress and stay focused on the task at hand”, and expresses his view on B&M’s lack of project goals. Mr. Antonov then responds by confirming that B&M has not communicated anything to Siemens about project timelines and expressing concern that a claim may “come out of the blue” from B&M. He concludes by stating, “If we see any alarming signals we needed [sic] to go offensive right away.”

[59] Nothing in the email indicates that Symtech is suffering losses for which it may or will be seeking compensation from Siemens.

[60] Mr. Mackie’s affidavit further refers to a “joint submission for compensation” made by Symtech and Siemens on December 27, 2018. Symtech argues that the notice letter further confirms that Siemens believed that Symtech had a legitimate claim for scope changes and schedule impacts. Symtech submits that the notice “cites specific project delays and indicates that costs will be sought”. That is not what it says.

[61] The notice deals with B&M’s delay in approving three change requests. It does not raise project delay impacting Siemens (or Symtech). The notice sets out that the changes “require a substantial amount of work and additional manpower” and that Siemens was “not able to proceed with the additional scope without an official approval and compensation guarantee.” It is a notice seeking approval of previously submitted change orders before the extra work proceeded. There is a reference to the changes delaying completion of Siemens’ scope of work by 4-5 months, but no evidence has been tendered by either party supporting that the changes were approved, that the work was performed, or that any delay actually resulted from it.

[62] The notice does contain a reference to having sought compensation for extra work caused by lack of space to accommodate certain controls and due to controls damage. That, too, is a claim for an extra. There is no indication that either Siemens or Symtech was delayed because of that extra work.

[63] In its responding factum, Symtech has put forward a chart identifying eighteen documents that it characterizes as “notices and related issues of which Siemens knew of or should have been aware of”. I have already addressed several of them above. None of these assist Symtech.

[64] Nine of the “notices” are letters or notices from B&M to TTC, which do not appear to have been sent to Siemens. I am asked to infer that Siemens was aware of the communications without having been directed to any evidence supporting that Siemens was likely aware of them or any course of conduct whereby B&M provided such notices and letters to Siemens. Siemens has pointed me to Article 7.2 of the B&M/Siemens subcontract (added by the supplementary conditions). As incorporated into the Siemens/Symtech sub-subcontract, it would provide an express requirement that Symtech’s notices be given to Siemens where Siemens is required to give notices to B&M.

[65] Regardless, except for an internal Siemens email dated January 16, 2019 and Symtech’s formal claim letter dated January 17, 2019, all of these “notices” deal only with the fact of project delays and disruptions. None of them address claims for compensation, other than a request by Symtech for adjustment in the sub-subcontract price for Symtech’s shift work premium, which as I noted earlier had been included in Symtech’s quote but was not included in the purchase order price. That was ultimately the subject of an agreed change to the Siemens/Symtech sub-subcontract that increased the total sub-subcontract price.

[66] Two of B&M’s letters to TTC request extensions of the contract time. A few of B&M’s other letters note the fact of impacts to “schedule, progress of work, manpower, equipment and project costs”, but only in that general phrase. No specific cost impacts are raised. In any event, I do not accept that B&M giving general notice to TTC of project cost impacts on behalf of itself and its subcontractors satisfies Symtech’s contractual notice obligation. Symtech was required to give notice of its claim to its contracting party. No convincing argument has been made for why notice to B&M, rather than Siemens, would be sufficient notice.

[67] Importantly, Siemens does not dispute that it was aware of project delays. That is all that is addressed in the various notices. The required notice is not that Symtech was delayed. It is notice of Symtech’s potential or actual claim for compensation arising from delays.

[68] Sergey Antonov’s cross-examination was clear that, prior to a meeting with B&M in January 2019, it had “never really been mentioned that [Symtech] incurred any grief because of some kind of inefficiencies or delays.” An email appended to Bruce Mackie’s affidavit between Sergey Antonov and Wadie Shuhaibar of Siemens dated January 16, 2019 (which is one of the eighteen “notices” relied upon) does support awareness of a potential claim by Symtech on that date. That is the day before Symtech’s formal notice letter was sent. There is no other evidence supporting that Siemens had earlier notice of a potential claim by Symtech.

[69] There is no genuine issue requiring a trial on whether Symtech was being impacted by ongoing delays, disruptions, and resequencing to its work throughout its time on the project. That is amply supported by the record before me. However, despite Symtech’s efforts to identify potential notices, I find no convincing evidence supporting that Symtech gave notice to Siemens of any potential or actual claims arising from delay prior to January 2019.

[70] I am satisfied that Siemens has met its onus of demonstrating there is no genuine issue for trial on the timing of Symtech’s first notice to Siemens. Symtech has tendered nothing that demonstrates a real chance of success in rebutting Mr. Antonov’s evidence. I thereby find that Siemens was given no contractual notice that Symtech was suffering losses and expected to claim them from Siemens until January 17, 2019. It is the first written notice given to Siemens that Symtech would be seeking additional compensation. The notice asserts costs incurred due to schedule delay and disruptions, scheduling and coordination problems, construction productivity loss, and acceleration costs.

[71] Siemens responded to the notice letter. In the response, which is erroneously dated December 31, 2018, Siemens expressly challenged that there had been any prior concerns expressed by Symtech over the installation schedule or cost impacts resulting from it. Symtech argues that the letter ignores previously discussions between the parties about the schedule and its impact on Symtech. As discussed above, the record before me supports the accuracy of Siemens’ challenge.

[72] Symtech argues that, even if the January 17, 2019 notice is the only formal notice, there is a triable issue on whether it was a “timely” notice. Symtech argues that Siemens’ original substantial completion date under the B&M/Siemens subcontract was December 31, 2018. The notice was sent within a few weeks of that original scheduled completion date. Symtech submits that is sufficient to raise a triable issue on timeliness of the notice. I disagree. The record supports that Symtech ought to have known that it was suffering financial impacts from the delays well prior to giving notice to Siemens in January 2019. In that context, the notice was not “timely”.

[73] Symtech is correct that Siemens has tendered no evidence supporting that Symtech knew it was suffering losses before December 2018. However, the totality of the evidence on this motion supports that Symtech knew it was delayed from the outset of the project. Bruce Mackie’s evidence supports that Symtech was aware throughout the project that it was suffering productivity inefficiencies due to matters such as resequencing of Symtech’s work and the distance between its materials and equipment storage and Symtech’s work areas. In my view, the record supports a finding that Symtech ought to have known that it was suffering losses, including loss of productivity and additional labour hours, as a direct result of the ongoing delays and disruptions to its work. In my view, that is enough for Siemens to have satisfied its onus.

[74] Since Siemens has satisfied its onus, it falls to Symtech to demonstrate a real chance of success at a trial of establishing that it did not reasonably have knowledge of its ongoing and increasing losses well before giving notice or that the timeliness of the notice does not depend on when Symtech knew that it was incurring losses. Symtech has not done so.

[75] As expressly set out in subrule 20.02(2), a responding party must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. If Symtech’s position is that it was not aware that it was suffering losses from delays and disruptions until December 2018, it had to “lead trump or risk losing.” There is some evidence supporting that Symtech did not know until December 2018 that it could not meet the deadline for its work. That is not the same as being unaware that delay-related losses had been and continued to be incurred. Bruce Mackie’s evidence is silent on when Symtech knew it was suffering losses and why clear notice to Siemens was not given sooner. That is information exclusively within the knowledge of Mr. Mackie or others at Symtech. Symtech’s failure to tender direct evidence on the issue is, in my view, significant.

[76] I reject the suggestion that Symtech did not have any obligation to tender that evidence and that Siemens ought to have elicited it. Siemens has tendered sufficient evidence to establish that Symtech ought reasonably to have had knowledge that it was incurring losses long before giving notice of any claim. Siemens is not obliged to prove Symtech’s subjective knowledge. It would not be obliged to do so at trial. Symtech’s argument is, essentially, that it will have further and better evidence at trial and that I should permit it the opportunity to tender that evidence. As already noted above, courts have routinely rejected that kind of argument in response to a summary judgment motion.

[77] Symtech has not demonstrated a real chance of success at a trial of establishing that it did not reasonably have knowledge of its ongoing losses throughout the course of ongoing delays on the project. There is no genuine issue for trial. I find that the record supports that Symtech ought reasonably to have known it was suffering losses for which it was entitled to claim compensation under the Siemens/Symtech sub-subcontract well prior to January 2019.

[78] To summarize the foregoing, the evidence before me does not support that Symtech has a real chance of success at trial of proving that it gave notice to Siemens of a potential or actual claim by Symtech for additional compensation for delays prior to January 2019. Up until that time, the record supports no more than expressions of frustration and complaints about how the project was being run and delays. The “grumblings of a contractor” are not sufficient to constitute proper notice of a claim: Elite Construction Inc. v. Canada, supra at para. 122.

[79] Notwithstanding that Symtech ought to have known of its losses well prior to January 2019, Symtech failed to provide any notice of its intention to make a claim for an increase to the sub-subcontract price. Rather, it waited until after it had accumulated significant losses and expenses before giving notice of the claim in January 2019. Symtech’s initial request for equitable compensation was for $360,143.08, as outlined in an undated document seemingly produced in sometime between the notice on January 17, 2019 and the first submission by Siemens to B&M on March 1, 2019. By June 2019, Symtech’s claim had increased to $677,261.19.

[80] Moreover, the B&M/Siemens subcontract terms do more than require timely notice in writing of a claim. They impose additional requirements to mitigate losses and expenses and to document the claim in a timely manner. The relevant terms are as follows:

6.6.2 Upon commencement of the event or series of events giving rise to the claim, the party intending to make a claim shall: .1 take all reasonable measures to mitigate any loss or expense which may be incurred as a result of such event or series of events, and .2 keep such records as may be necessary to support the claim.

6.6.3 The party making the claim shall submit within a reasonable time to the other party a detailed account of the amount claimed and the grounds upon which the claim is based.

6.6.4 Where the event or series of events giving rise to the claim has a continuing effect, the detailed account submitted under paragraph 6.6.3 shall be considered to be an interim account and the party making the claims shall, at such intervals as the other party may reasonably require, submit further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based. The party making the claim shall submit a final account after the end of the affects resulting from the event or series of events.

[81] These requirements are significant in this case, which involves a fixed price sub-subcontract. The total sub-subcontract price between Siemens and Symtech, including approved changes, is $664,981.89, plus HST. That is the price that Siemens and Symtech agreed for Symtech to complete its full scope of work. Symtech’s total prolongation claim was recalculated in January 2022 at $629,185.32, plus HST. That figure is essentially equal to the total sub-subcontract price. Siemens own base subcontract price in the B&M/Siemens subcontract was $1,290,000 plus HST. That is less than the aggregate of Symtech’s sub-subcontract price and its prolongation claim.

[82] Symtech argues that nothing in the sub-subcontract terms stipulates that if timely notice of a claim is not provided that the claim cannot still be advanced. Symtech submits that it would be inappropriate to read-in such a consequence as an implied term without hearing live witnesses and weighing evidence. However, Symtech has tendered no case law supporting its position that a claim may still be advanced despite non-compliance with a notice provision. Case law before me supports the contrary.

[83] Notably, Symtech’s argument is the same argument made before the Court of Appeal in Technicore Underground Inc. v. Toronto (City). In that case, the appellant argued that, because there was no “failing which” clause in the disputed notice provisions, the contract did not contain the clear language necessary to deprive the appellant of the right to proceed with its full counterclaim. That argument was rejected. The Court of Appeal concluded that a “failing which” clause was not required: Technicore Underground Inc. v. Toronto (City), supra at paras. 28-45.

[84] The policy rationale for not requiring a clear “failing which” clause before barring a claim that did not comply with contractual notice provisions was discussed in Technicore Underground Inc., at para. 47. The Court of Appeal stated as follows:

[…] one purpose of a notice provision is to enable the owner to consider its position and the financial consequences of the contractor providing additional work. Notice gives the owner the opportunity to decide whether to conclude another agreement with the contractor or have the work done by some other. It also enables the owner to make arrangements to monitor the costs of the additional work. The contractor must give notice in accordance with the notice provision, otherwise it deprives the owner of the benefits guaranteed by the notice provision.

[85] That rationale applies here. A similar rationale also applies to interpreting the commercially reasonable meaning of “timely” in the context of the parties’ dealings. The lack of prompt notice by Symtech that it was incurring losses and had a claim against Siemens denied Siemens the ability to consider its options and position. It further denied Siemens an opportunity to monitor Symtech’s additional costs as they were being incurred. Instead, a substantial total cost claim was presented to Siemens, but not until long after the underlying events causing delay and disruption had commenced, Symtech reasonably ought to have known that it was incurring significant losses, and those losses had ballooned. Siemens was afforded no opportunity to take steps to assist with or contain them.

(d) Did Siemens Waive the Contractual Notice Requirement?

[86] Symtech argues that Siemens waived any requirement for notice by its conduct. I find no genuine issue requiring a trial on Symtech’s alleged waiver.

[87] Waiver occurs when one party to a contract takes steps that amount to foregoing reliance on some known right or defect in the performance of the other party. It will be found only where the evidence demonstrates that the party waiving had (i) a full knowledge of the deficiency that might be relied on, and (ii) an unequivocal and conscious intention to abandon the right to rely on it. The intention to relinquish the right must be communicated. Communication can be formal or informal and it may be inferred from conduct. The overriding consideration in each case is whether one party communicated a clear intention to waive a right to the other party: Technicore Underground Inc., supra at para. 63.

[88] I am satisfied that Siemens has met its onus of demonstrating that there is no genuine issue requiring a trial on waiver. Sergey Antonov’s evidence supports that Siemens had no subjective intention of abandoning its contractual right to prior notice of Symtech’s claim. Notably, the lack of prior notice was expressly challenged in response to Symtech’s notice dated January 17, 2019. There is also no evidence of any communicated intention by Siemens to relinquish the right to rely on the contractual notice provisions.

[89] Symtech argues that dealings between the parties leading up to the joint submissions made to B&M, as well as the fact of the three joint submissions, support a triable issue on waiver. Symtech submits that it was clear to Symtech that Siemens was not holding Symtech to strict compliance with any requirement to have provided formal notice. However, it does not matter what Symtech subjectively believed. Waiver focuses on the subjective or objective intention of the party waiving, not the belief or understanding of the opposite party.

[90] I have already addressed above why the evidence on discussions prior to the notice on January 17, 2019 does not support that Symtech communicated any intention to make a claim to Siemens for losses incurred due to the project delays. It would be unjust to find that Siemens waived the notice requirements for a claim by Symtech in the absence of knowing that such a claim was going to be advanced. Absent cogent evidence supporting that Siemens had been told that a claim was pending, which is not in the record before me, I cannot find that Siemens had full knowledge of the material facts necessary to support waiver of the notice provisions prior to January 2019.

[91] The joint submissions to B&M were advanced after clear notice of Symtech’s intention to claim additional compensation had been made. However, the fact of joint submissions that carried Symtech’s prolongation claim is not itself sufficient to amount to waiver of the notice requirement as between Siemens and Symtech. To find waiver, there must be evidence that Siemens had formed an unequivocal and conscious intention to abandon the right to rely the notice provisions and, moreover, communicated that intention to abandon it to Symtech.

[92] I am unconvinced by Symtech’s arguments that it is appropriately inferred that preparing a joint submission for compensation to B&M (a third party) amounts to an acknowledgement by Siemens that it was waiving the contractual notice requirement for Symtech’s claim against it. There is no cogent evidence supporting that Siemens accepted Symtech’s claim was timely or valid and that the contractual notice requirements would not be enforced if the claim was pursued against Siemens.

[93] It is undisputed that Symtech began work on a joint delay claim with Symtech after the formal notice of claim. Sergey Antonov’s evidence, though, is that he did not believe it was a valid claim or that it was supported by any documentation. His evidence is that the joint submissions were a defensive strategy against potential allegations of delay by B&M and a concern that B&M would attempt to pass through liquidated damages that might be assessed against it by TTC. Symtech argues that there are credibility issues around whether the joint submissions were a defensive strategy or not, particularly since Siemens added its own claim to that of Symtech when preparing the joint submission. However, Bruce Mackie’s affidavits do not expressly deny that the joint submissions were done as a defensive strategy.

[94] I have also been directed to no evidence supporting that Mr. Mackie or Symtech genuinely believed that Symtech’s claim had been accepted by Siemens. I am unconvinced that any of the emails to which I have been directed support an acknowledgement by Siemens that Symtech was entitled to its additional costs. Notably, nowhere in the emails exchanged between Leonid Zaidentrumf and Sergey Antonov between February 19 and 28, 2019 (which are specifically pointed to by Mr. Mackie in his affidavit evidence and relied upon by Symtech) is there any acknowledgment by Siemens of Symtech’s entitlement to compensation. In my view, there is no evidence supporting a real chance of success in proving that Siemens had formed a subjective intention or objectively expressed an intention to waive the notice requirement for Symtech’s claim.

[95] Even if I accept Symtech’s position that Siemens had agreed to assist Symtech in recovering its additional costs, the record before me does not support any finding beyond an an agreement to assist in trying to recover them from B&M. That is not the same as acknowledging the claim was timely and could be pursued against Siemens. Trying to negotiate compensation from a third party is not the same as waiving legal contractual defences to direct liability for a claim. Notably, the B&M/Siemens subcontract contains a relevant requirement incorporated into the Siemens/Symtech sub-subcontract. SCC 6.1.3 required Siemens to use “commercial reasonable efforts” to present Symtech’s claim for adjustment to B&M. Siemens was accordingly contractually obliged to put forward Symtech’s claim.

[96] Symtech argues that I should consider Siemens failure to comply with SCC 6.6.5, which required Siemens to reply to Symtech’s claim within ten working days of receiving it (or within such other time period agreed by the parties). I agree there is no evidence of any response from Siemens denying Symtech’s claim. However, I am unconvinced that the failure by Siemens to deny the claim under SCC 6.6.5 raises an issue requiring a trial.

[97] Symtech’s position amounts to an argument that Siemens failing to expressly deny the claim somehow validates it. I do not accept that submission. No case law has been tendered supporting that such non-compliance may amount to waiver of a notice requirement or deemed acceptance of a claim. I was directed to no provision in the terms of the purchase order or the terms incorporated from the B&M/Siemens subcontract that supports such an interpretation.

[98] I note that B&M also did not respond to Siemens’ additional costs compensation request within the ten days stipulated by SCC 6.6.5. The revised claim sent on August 23, 2019 indicates that no “official response” had been provided by that time. Nevertheless, there is no argument that B&M should be similarly deemed to have accepted the joint claim that subsumes Symtech’s prolongation claim.

[99] Courts must approach interpreting commercial contracts in a commercially reasonable manner having regard to the sophistication of the parties. In my view, it would be commercially unreasonable to interpret the standard form CCA 1-2008 stipulated price contract such that untimely claims for compensation under SCC 6.6.1 are deemed validated in the event that the claim is not expressly denied under SCC 6.6.5. In my view, implying such a term would substantially weaken if not vitiate the express requirement for timely notice in SCC 6.6.1. I find no basis to do so on the record and case law before me.

[100] This is also not a situation where Siemens said nothing. As discussed above, after Symtech sent its notice letter on January 17, 2019, Siemens responded by way of letter erroneously dated December 31, 2018. That letter challenged Symtech’s failure to raise its concerns about cost impacts at the beginning of the project or at the time of Siemens requesting feedback on Schedule #15 in July 2018. Other than implied acceptance through the joint submissions, which I have rejected above, Symtech has pointed to no other emails, letters, or documents supporting a genuine issue for trial that Siemens had accepted the claim and waived the contractual notice requirement in the sub-subcontract.

[101] Symtech also argues that there is a triable issue that the sub-subcontract was varied by the parties’ course of conduct, relying on Colautti Construction Ltd. v. Ottawa (City) (1984), 46 OR (2d) 236 (CA). I give that argument no effect. There is no issue requiring a trial. The record before me does not support any course of conduct between the parties that could reasonably amount to variation of contractual claim requirements, including required notices.

[102] In my view, Symtech has failed to demonstrate that it has a real chance of success at trial on its position that Siemens waived the notice requirement or that by failing to expressly reject the claim Siemens should be deemed to have accepted or validated the claim. I accordingly find that Siemens did not waive the notice requirements of the sub-subcontract and did not accept Symtech’s claim for additional compensation as being valid as against Siemens.

[103] It follows that, since the requirement for notice was not waived and a contractually compliant notice of the prolongation claim was not given, Symtech is barred from pursing the prolongation claim.

Issue 2: Viability of Claim if Siemens Did Not Cause Delay

[104] Siemens does not dispute that Symtech was performing a portion of Siemens’ scope of work. It is undisputed that Symtech was on site prior to Siemens. Siemens argues that, since it is not responsible for the delays alleged by Symtech, there is no triable issue that Siemens cannot be liable for the prolongation claim. I am not convinced that position is correct. However, given my finding above, I need not address the argument.

[105] Although not strictly necessary to my decision, I do wish to comment on Siemens’ submission that Symtech ought to have pursued its claims for delay directly against the parties causing the delay, namely B&M and/or TTC. Specifically, Siemens argues that Symtech ought to have sued B&M directly for the delays and maintained its claim against TTC rather than discontinuing this action against it when Symtech’s lien was vacated.

[106] In my view, Siemens’ argument has no merit. Whether or not Symtech has valid causes of action against B&M and TTC is immaterial to this motion unless those claims were properly joined in Symtech’s lien action. In both cases, it would have been improper for Symtech to do so.

[107] Pursuant to s. 55(1) of the CLA, only a claim for breach of contract or subcontract may be joined with a lien claim in a lien action. Symtech has no privity of contract with B&M. The incorporation of the B&M/Siemens subcontract terms does not create privity of contract and I was directed to nothing that would support a direct claim in contract by Symtech against B&M by virtue of the agreement between Symtech and Siemens. Any non-contract cause of action against B&M was not properly joined in this lien action.

[108] Similarly, Symtech has no privity of contract with TTC. Nevertheless, Symtech’s claim against TTC at first instance was valid. Pursuant to s. 23 of the CLA, an “owner” (such as TTC in this case) is personally liable to lien claimants for the holdbacks that the owner was required to retain. That statutory liability permits a direct claim by a lien claimant against an owner to the extent of those holdbacks. However, when Symtech’s lien was vacated, s. 44(6) provides that (i) the lien ceased to be a charge against the holdbacks and instead became a charge upon the security posted into court, and (ii) TTC was returned to the same position with respect to holdback obligations as if the lien had not been preserved.

[109] Put simply, once Symtech’s lien was vacated, Symtech ceased to have any statutory claim against TTC. To the extent that Symtech has any non-contractual causes of action against TTC, those too were not properly joined in this lien action.

Issues 3-4: Symtech’s Prolongation Claim Quantification

[110] Siemens challenges the prolongation claim on the basis that (i) it fails to connect the losses and damages to any specific events of delay, and (ii) it is based on a global claim for costs incurred by Symtech divorced from the fixed price nature of the subcontract relationship. In my view, these are both essentially challenges to the methodology behind Symtech’s claim quantification.

[111] Given my findings above, I need not address these arguments. I would have found, though, that there are genuine issues for trial on the methodology used to quantify Symtech’s prolongation claim. It is not clear to me that impacts from delays and disruptions on the project cannot be properly quantified without correlating them to specific delay events. Similarly, absent a responding expert, which Siemens has not tendered, it is not clear that Mr. Dearness’ calculation methodology is unsustainable.

Issue 5: Breach of Contract and Quantum of Unpaid Amounts

[112] Symtech alleges that Siemens breached the sub-subcontract by failing to properly manage the project and by failing to pay Symtech its holdback, which Symtech claims was due and owing. Siemens submits that there is no evidence supporting any breach of the sub-subcontract.

[113] Siemens has the evidentiary burden of proving that there is no genuine issue requiring a trial on its alleged breaches of contract. I find that Siemens has not met that onus.

[114] Symtech alleges that Siemens breached the contract by failing to properly manage the project in accordance with its contractual obligations. Symtech points out that SCC 3.1.3 and SCC 3.1.4 of the B&M/Siemens subcontract required Siemens to cooperate and coordinate with other subcontractors in the course of the job. SCC 3.3.1 further requires Siemens to provide “all necessary supervision” and to “appoint a competent representative” to be in attendance at the site while work is being performed. As already discussed above, Symtech relies on various emails and communications to support that Siemens was aware of ongoing project issues, but was doing little or nothing about them.

[115] Bruce Mackie’s evidence is that overall supervision of the project as it related to the Symtech’s work and overall management of Symtech’s work belonged to Siemens. Symtech points to an acknowledgment by Sergey Antonov during his examination that Siemens retained its project supervision obligations under the B&M/Siemens subcontract when subcontracting Symtech. Specifically, the relevant exchange was as follows:

Q. The installation portion of this contract was subcontracted to Symtech; correct? A. Correct. Q. Right, and the balance of the contract, including the supervision, remained with Siemens; is that correct, sir? A. Project supervision? Yes.

[116] Siemens essentially dismisses the evidence that has been cited by Symtech, arguing that Symtech was an independent contractor and that, as a result, Siemens had no obligation to supervise or manage Symtech’s work. Symtech points to a purchase order term stating expressly that Symtech is an independent contractor. It provides as follows:

19. INDEPENDENT CONTRACTOR The parties herein are two Independent entities. Supplier is engaged as an Independent contractor solely for the purpose of providing the Deliverables. Supplier is solely responsible for all losses and expenses prudent to performing its obligations hereunder.

[117] Sergey Antonov’s evidence is that Siemens was not supervising Symtech’s work and that Symtech was responsible for supervising itself. His evidence is that, as an independent contractor, Symtech had control of the manner and means of performing its work, which included supervision of its own workforce. Siemens points to the same SCC 3.3.1 term relied upon by Symtech, extracted above, arguing that it equally applies to Symtech since the B&M/Siemens subcontract terms were incorporated into the Siemens/Symtech sub-subcontract.

[118] Whether Siemens was or was not responsible for supervising Symtech is, in my view, a genuine issue requiring a trial. On that issue of supervisory obligations, the interplay between the B&M/Siemens subcontract terms (which set out Siemens’ obligations), term no. 19 of the purchase order, and the impact of the B&M/Siemens subcontract terms being incorporated into the Siemens/Symtech sub-subcontract has not, in my view, been adequately addressed by Siemens. I am unable to agree with Siemens that a trial is not required to determine whether Siemens had an obligation to supervise and manage Symtech’s work and, if so, whether it breached that obligation.

[119] Siemens argues that there is no genuine issue for trial that it was not in breach of contract for non-payment of holdback since it was not due to Symtech until Siemens had been paid by B&M. Once the funds were received, Siemens submits it was entitled to rely on its set-off rights in not paying Symtech. In support of that argument, Siemens relies on a pay-when-paid clause in Article 6.3 of the B&M/Siemens subcontract, added by the supplementary conditions.

[120] There is no evidence before me from Siemens on the circumstances of its dispute with B&M, the reasons for non-payment of Symtech’s holdback, the nature of any negotiations with B&M, or the timing of payment. Siemens has accordingly not met its onus of proving that there is no genuine issue requiring a trial on whether the non-payment of holdback was a breach of the sub-subcontract.

[121] In addition, preconditions to release of holdback are addressed in the B&M/Siemens subcontract at Article 6.4, as amended by the supplementary conditions. No evidence has been tendered from either side on whether these conditions were met. Limited argument was made on whether they even apply. Symtech’s answers to undertakings suggest that Symtech is relying on the purchase order payment terms as governing.

[122] I also find a genuine issue for trial on quantification of the earned and unpaid amount remaining under the sub-subcontract. The lawyer’s affidavit filed by Siemens on this motion states that Siemens admits that Symtech is owed $82,101.24 plus HST for outstanding invoices and holdback. Siemens submits that the difference between that figure and the position taken in Siemens’ submissions that only statutory holdback of $66,315.01 is owing stems from the settlement reached with B&M after the affidavit was sworn. That settlement is said to have accounted for incomplete tailpipe exhaust system work that was within Symtech’s scope and remained incomplete when Symtech left the job. There is some evidence from Sergey Antonov that the tailpipe exhaust system work was completed by B&M with the cost deducted from amounts owing to Siemens.

[123] Siemens submits that the figure in the lawyer’s affidavit can be calculated from the Scott Schedule by adding the three line items of unpaid amounts (other than the prolongation claim) that have not been struck out. The holdback amount represents the amount invoiced by Symtech, reflected at item no. 18 in the Scott Schedule. However, as acknowledged by Siemens’ counsel, there is no direct evidence in the record dealing with the tailpipe exhaust system credit or why the two other line items in the Scott Schedule are no longer acknowledged as owing.

[124] On the record before me, I am unable to determine the earned and unpaid amounts under the sub-subcontract. In my view, since Symtech does not concede that its non-prolongation claim is limited to one holdback invoice, a trial is required.

Issue 6: Appropriateness of Partial Summary Judgment

[125] My decision is such that the entire action cannot be disposed of on this motion. If I grant judgment dismissing Symtech’s prolongation claim, the balance of the action will still be proceeding to trial.

[126] The appropriateness of partial summary judgment has been discussed in numerous decisions of the Court of Appeal, including some relied on by the parties on this motion. Partial summary is rare and should be reserved for an issue or issues that may be readily bifurcated and that may be dealt with expeditiously and in a cost-effective manner: Learmont Roofing Ltd. v. Learmont Construction Ltd., 2022 ONCA 894 at para. 19; Dia, supra at para. 28; Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34.

[127] Partial summary judgment may be appropriate if (i) dividing the determination of the case into several parts will prove cheaper for the parties; (ii) partial summary judgment will get the parties’ case in and out of the court system more quickly; and (iii) partial summary judgment will not result in inconsistent findings by the multiple judges who touch the divided case: Malik v. Attia, 2020 ONCA 787 at para. 62. However, partial summary judgment may be inappropriate where it is possible that the trial judge will develop a fuller appreciation of the relationships and the transactional context than the motions judge, which could risk inconsistent findings and substantive injustice: Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6 at para. 9.

[128] In this case, I am both the motions judge and the trial judge. This motion has been brought within a reference before me under the CLA. By reason of that reference, I am seized of all motions and other interlocutory steps in this action, as well as the ultimate trial. Many of the concerns raised in the case law about partial summary judgment are mitigated by that fact alone. Nevertheless, in my view, disposing of Symtech’s prolongation claim and directing a trial of the balance of the claim, which will be a much shorter and more focused trial, does achieve the objectives of proportionate, timely, and affordable justice. It further meets the statutory mandate in s. 67(1) of the CLA that lien actions be as far as possible of a summary character.

Issue 7: Parallel Summary Judgment in Breach of Trust Action

[129] Siemens also seeks summary judgment in Symtech’s related breach of trust action. In that proceeding, Symtech has sued Siemens and various individual defendants for breaching the trust provisions of the CLA.

[130] I am not convinced that I should grant judgment in that action. The breach of trust action is not part of the reference before me. It deals with a different cause of action and involves individual defendants who are alleged to have assented to or acquiesced in Siemens’ breach of trust. Siemens argues that Symtech’s claimed damages are co-extensive in both actions. That may be the case, but the elements of the cause of action in a breach of trust claim are different than in a breach of contract claim. No specific submissions have been made on the elements of the breach of trust claim or the liability of the individual defendants named in that proceeding.

[131] In Pylon Paving (1996) Inc. v. Beaucon Building Services Inc., 2022 ONSC 3282, I discussed the different jurisdiction of an associate judge in a lien action subject to a reference under the CLA and in a related non-lien action. In particular, as I held at para. 20 of that decision, the expanded jurisdiction and authority available to a reference associate judge under s. 58(4) of the CLA cannot be used in a related non-lien breach of trust action. I observed at para. 40 that I have more limited jurisdiction on a summary judgment motion in a non-lien action than in a lien action referred to me.

[132] In my view, the differences in the cause of action, the additional parties, and variances in my jurisdiction to grant summary judgment is sufficient for me to decline to grant parallel summary judgment in the breach of trust action. If Siemens and the individual defendants in that action deem it appropriate, a separate motion may be brought for summary judgment in that action. However, it would need to address the various elements of a breach of trust claim and why there is no genuine issue requiring a trial for the claims against all of the defendants.

Disposition

[133] For the above reasons, I accordingly order as follows:

(a) Symtech’s prolongation claim for losses and damages arising from delays and disruptions on the project is hereby dismissed.

(b) The balance of Siemens’ motion is dismissed, including Siemens’ request for parallel summary judgment in Symtech’s related breach of trust action.

(c) Subparagraph (b) above is without prejudice to Siemens bringing a separate summary judgment motion in Symtech’s breach of trust claim.

(d) This order, which forms part of my procedure book for this reference, is effective without further formality.

[134] Given my delayed disposition of this motion, and for the benefit of the parties, I would like to expeditiously move the action to a final resolution of the remaining issues, to the extent possible. I encourage the parties to promptly book a next hearing for trial directions so that trial of the remaining issues may be scheduled.

[135] Prior to the next hearing before me, the parties should discuss narrowing or resolving outstanding issues and their positions on what issues require a trial. That discussion should include whether the third party claim against B&M will be maintained given the outcome of this motion and whether any orders under subrule 20.05(2) of the Rules should be made regarding the conduct of the trial. The parties should also exchange proposed witness lists beforehand.

Costs

[136] The parties were directed to discuss and seek agreement on costs of the motion, if possible, but otherwise were to have exchanged costs outlines within one week of the hearing. Costs outlines and/or bills of costs were then to have been submitted to my Assistant Trial Coordinator (ATC). I do not appear to have received either parties’ costs outline, although Symtech’s has been uploaded to CaseLines. If the parties did not resolve costs and previously submitted costs outlines, then those emails should be promptly re-sent to my ATC.

[137] Given the result, which leaves much narrower issues for determination, it may be appropriate to defer costs of this motion to final disposition of the reference. If the parties wish to deal with costs of this motion now, then they should discuss whether it is appropriate to deal with them by oral submissions, or if they feel written submissions are required. The process for deciding costs may be spoken to at the next hearing for trial directions.

ASSOCIATE JUSTICE TODD ROBINSON DATE: October 13, 2023