2023 ONSC 6099

Superior Court of Justice

COURT FILE NO.: CV-17-2054-00 DATE: 2023 10 27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDERSON SHEET METAL LTD. Plaintiff

• and -

COMTRACT AIR COMPRESSORS INC. Defendant

COUNSEL: Charles B. Holder, for the Plaintiff Adil Habib, for the Defendant

HEARD: April 26 and September 11, 2023

REASONS FOR JUDGMENT

LEMAY J

[1] The Plaintiff, Anderson Sheet Metal Ltd. (“Anderson”) is a sheet metal fabricator that provided services to the Defendant, Comtract Air Compressors Inc. (“Comtract”). The Plaintiff provided a series of invoices to Comtract, but those invoices were not paid. There were e-mail exchanges between the parties about these unpaid invoices, all of which were for parts and labour that were provided between November of 2013 and August of 2014.

[2] When Anderson did not get paid, it commenced a claim in May of 2017. Since all of the invoices were sent in or prior to August of 2014, there is a limitations issue under the Limitations Act, 2002, S.O. 2002, c. 24, Sched B. The issue is whether the two year limitations period was refreshed by discussions between the parties. Specifically, there was an e-mail sent by the Plaintiff to the Defendant on June 14th, 2016 seeking confirmation as to “when the next payment will be available.” Anderson argues that this correspondence refreshed the limitations period. Comtract argues that the correspondence did not refresh the limitations period, with the exception of one invoice.

[3] The claim proceeded to a summary judgment motion before me in April of this year. At the time, I determined that viva voce evidence about the June 14th, 2016 e-mail was required. I also advised the parties that, if the limitations period was refreshed by way of this e-mail, then Anderson’s claims would likely succeed. On the other hand, if the limitations period was not refreshed by this e-mail, then Anderson’s claims would, with the one exception conceded by Comtract, be statute barred.

[4] For the reasons that follow, I have determined that the June 14th, 2016 e-mail refreshed the limitations period for some, but not all, of Anderson’s invoices. I have further determined that there is no basis, other than a Limitations Act defence, for Comtract to defend against having to pay the invoices where the limitations period was refreshed. The remaining invoices are beyond the limitations period. I have also determined that Anderson is entitled to interest at a rate of 5% on the outstanding invoices that are within the limitations period.

Procedural History and Evidence

[5] This action was commenced by way of a Statement of Claim that was served in 2017. Pleadings were closed by November 19th, 2017. The action was brought under the Simplified Rules. This matter originally came before me as a summary judgment motion on April 26th, 2023. The five and a half year delay between the closing of pleadings and the summary judgment motion is not explained in the materials before me.

[6] At the summary judgment motion, counsel for the Defendant correctly pointed out in argument that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 do not permit cross-examination on Affidavits in a Simplified Rules proceeding. The only way for the Court to obtain a full examination of any witness who provided an Affidavit was to permit cross examination. Therefore, I concluded that cross-examinations of Tracey Jennings and Trish Pittman, the two authors of the June 14th, 2016 e-mail exchange, should take place. I have treated their Affidavits as their examinations in chief.

[7] Those cross-examinations took place before me on September 11th, 2023. I have considered the testimony that I received in those cross-examinations as well as the motion records that the parties filed in coming to my decision.

Facts

[8] There is very little dispute about the underlying facts in this case. Those disputes mostly concern the effect of the e-mail exchange that took place between June 14th, 2016 and June 16th, 2016, and I will come to that exchange shortly.

[9] In 2013 and 2014, Comtract purchased materials and installation services from Anderson relating to ducting, louvers and dampers for Comtract’s customers. The invoices were issued for specific jobs, most of which were for different clients. Only one of Comtract’s clients, Automatic Coatings, was involved in more than one of these jobs.

[10] Payments were made by Comtract for some of these jobs throughout 2013 and 2014. In April of 2014, Comtract made a payment for $5,000.00. A second payment for $5,000.00 was made in July of 2014. The cheques for both of these payments indicate that they were being made on account of Invoice No. 7201. Comtract acknowledges that it still owes $6,950.00 on Invoice No. 7201.

[11] However, Comtract made one final payment on September 22nd, 2015. This payment was not banked by Anderson until November of 2015 and was referred to in the materials as the November payment and not the September payment. On Comtract’s evidence, this payment was on account of four separate invoices, being Invoices 7207, 7346, 7003 and 7084. It was applied to pay those four invoices in full.

[12] At that point, there was $44,104.40 owing to Anderson on five separate invoices, including Invoice 7201. The specific amounts, invoices and invoice dates that remained outstanding were as follows:

a) Invoice 5906, November 30th, 2013 for $7,910.00 b) Invoice 7028, March 17th, 2014 for $5,424.00 c) Invoice 7090, March 31st, 2014 for $7,864.00 d) Invoice 7201, May 31st, 2014 for $6,950.00 e) Invoice 7366, August 25th, 2014 for $16,136.40

[13] No further payments were made by Comtract between November of 2015 and June of 2016. In June of 2016, the following e-mail exchange took place:

June 14, 2016- From Tracey Jennings to trish@comtract.ca:

Trish,

We had been receiving monthly payments to clear up this account as agreed to, but have not received anything since November. Please let us know when the next payment will be available.

Thank you,

Tracey Jennings.

June 16, 2016 – From Trish Pittman to Tracey Jennings:

Sorry Tracey we have obviously been having some difficulties in paying off this account. I will see what I can send you in the next week or so.

Thanks,

Trish

Comtract Air

[14] In her evidence, Ms. Jennings confirmed that there was an attachment to her June 14th, 2016 e-mail. This attachment is a statement, dated June 14th, 2016, that shows the amounts outstanding on each of the five invoices identified at paragraph 12, above.

[15] Ms. Pittman, on the other hand, testified that there had been a problem with Comtract’s email system and that she could not confirm whether the statement with the outstanding amounts was attached to the e-mail. In any event, however, Ms. Pittman testified that her reference to the “account” in the e-mail was to Invoice 7201 and not to any of the other invoices.

[16] I reject Ms. Pittman’s evidence on this point for the following reasons:

a) There is no mention of the specific invoice number anywhere in any of the e-mails.

b) Ms. Pittman did not have any notes or other contemporaneous records to support her testimony that she and Ms. Jennings had a conversation that suggested that the discussions were limited to Invoice 7201.

c) Comtract’s position is based on Ms. Pittman’s evidence that she referred to the invoices as accounts and treated each invoice as a separate account. There are three problems with this testimony. First, they are words with different meanings. Second, the internal documents from Comtract shows all of the invoices recorded on a “G/L payables account”. This suggests that Comtract’s own internal documentation and systems refer to individual invoices as invoices and all of the monies owed to a particular vendor as an account. Finally, all of the cheques that were issued by Comtract have a separate space for account number and invoice number. It would be unusual for Ms. Pittman to use different language than what was consistently used through Comtract’s own systems.

[17] I should also note that Comtract’s counsel pointed out a technological problem. Specifically, the attachments to the e-mail exchange that were included in Ms. Jennings Affidavit had different names than the attachments in the e-mail exchange that was included in Mr. Mike Anderson’s Affidavit, even though the e-mail was the same. There was no explanation offered for this discrepancy.

[18] However, I would observe that Ms. Jennings composed the e-mail and testified that it included the complete statement of all of the unpaid (or partially paid) invoices. I would also note that the Statement is dated the same date as the June 14th, 2016 e-mail that Ms. Jennings sent, which is a fact that supports her evidence. These two pieces of evidence satisfy me that the different attachment names on the different e-mails is not significant.

[19] In addition, in her July 11th, 2019 Affidavit, Ms. Pittman states that there was an oral conversation prior to the e-mail of June 14th, 2016 being sent. In that conversation, Ms. Pittman claims that she and Ms. Jennings discussed a payment plan for Invoice 7201 only. Ms. Jennings testified that there were no oral discussions. I reject Ms. Pittman’s evidence and accept Ms. Jennings’ evidence for three reasons, as follows:

a) Ms. Pittman could not recall the date or the time of this conversation and had no notes of it.

b) Ms. Pittman’s evidence has to be considered with her evidence about the fact that account and invoice meant the same thing to her. I have rejected this evidence for the reasons set out above. It raises more global credibility issues with Ms. Pittman’s evidence. On that point, I will also observe that Ms. Pittman’s evidence on both the account vs. invoice question and this oral conversation struck me as an after-the-fact attempt to justify non-payment of Comtract’s account with Anderson.

c) Finally, if Ms. Pittman’s evidence that she and Ms. Jenkins discussed a payment plan for only Invoice 7201 was correct, then there was no explanation as to why the payments on the other invoices, described at paragraph 11, were made. If Comtract were only paying off the one invoice, then the payments would have been made on that invoice only and separate cheques would have been issued for each invoice.

[20] I conclude that the conversation that Ms. Pittman alleges took place did not take place, and that there were no oral discussions preceding the June 16th, 2016 e-mail. More generally, I conclude that Ms. Pittman’s evidence is, unless supported by specific documentation, lacking in both credibility and reliability. Where Ms. Pittman’s evidence differs from other evidence that I have received, I reject it.

[21] As a result, I conclude that the e-mail from Ms. Pittman on June 16th, 2016 was referencing all of the outstanding amounts owing and not just Invoice 7201. I now turn to consider the legal effect of that factual conclusion.

The Law

[22] The test for summary judgment is set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The first question is whether there is a genuine issue requiring a trial. As set out at paragraph 49 of Hryniak, there is no genuine issue requiring a trial where the summary judgment process:

a) Allows me to make the necessary findings of fact;

b) Allows me to apply the law to the facts; and

c) Is a proportionate, more expeditious and less expensive means to achieve a just result.

[23] These principles are applied in a two-step process. First, I determine whether there is a genuine issue requiring a trial based only on the record before me. Then, if there appears to be a genuine issue requiring a trial, I would then determine whether the need for a trial can be avoided by using the enhanced powers under the Rules. Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at para. 24.

[24] In this case, after hearing argument on the summary judgment motion, I determined that there was an issue of credibility over one narrow, but significant, point. It was the question of what was intended by the e-mail chain sent on June 14th, 2016. As a result, I directed that cross-examinations focused on that e-mail be conducted.

[25] At the first hearing in April, I concluded that the summary judgment process was less expensive and more proportionate than ordering a trial in a case where the factual dispute was so narrow. Having a trial of several days duration to provide viva voce evidence on all of the issues would not be an efficient use of Court time and, given that almost all of the facts were undisputed, it would not have assisted either myself or another trial judge in disposing of this case.

[26] It must also be remembered that the value of this case is less than $50,000.00. As a result, a full-blown trial would have also had the disadvantage of being a disproportionately expensive method to resolve this dispute.

[27] This brings me to the merits of the case. This is a Limitations Act case. The most relevant provisions of the Limitations Act are sections 4, 5 and 13.

[28] Section 4 sets out the general two year limitation period that would normally apply to a case such as this. Section 5 sets out the discoverability principles that determine when a claim is discoverable. I am of the view that, in this case, the claims were discoverable thirty (30) days after the invoice was rendered, when it became overdue.

[29] The key question is whether the limitations period was “refreshed” under section 13 of the Limitations Act. The relevant portions of that section are as follows:

Acknowledgements

13 (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made. 2002, c. 24, Sched. B, s. 13(1)

Liquidated Sum

(8) Subject to subsections (9) and (10), this section applies to an acknowledgment of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgment refuses or does not promise to pay the sum or the balance of the sum still owing. 2002, c. 24, Sched. B, s. 13 (8).

Restricted application

(9) This section does not apply unless the acknowledgment is made to the person with the claim, the person’s agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada) before the expiry of the limitation period applicable to the claim. 2002, c. 24, Sched. B, s. 13 (9).

Same

(10) Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person’s agent. 2002, c. 24, Sched. B, s. 13(10)

Same

(11) in the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is made or by the person’s agent has the same effect as the acknowledgement referred to in subsection (10). 2002, c. 24, Sched. B, s. 13 (11)

[30] In its submissions, the Defendant properly concedes that under section 13(8), it is possible for a debtor to acknowledge a debt and restart the limitations period. However, the Defendant argues that the limitations period in this case was not reset except for Invoice 7201. I now turn to consider those arguments.

Analysis and Disposition

[31] In this case, the key question is whether the e-mail exchange that took place between June 14th, 2016 and June 16th, 2016 was an acknowledgement of the debt owed by Comtract such that section 13(1) applies and the limitations period begins to run from that date. I find that it does.

[32] The test for whether the e-mail qualifies as an acknowledgement under section 13 of the Limitations Act is set out in 1702108 Ontario Inc. v. 3283313 Canada Inc., 2016 ONCA 420, (2016) 132 O.R. (3d) 237, at para. 5, as follows:

[5] The language of the statute sets out the applicable test: s. 13(1) is engaged when a person acknowledges liability in respect of a claim for payment of a liquidated amount. In Middleton v. Aboutown Enterprises Inc., [2009] O.J. No. 2415, 2009 ONCA 466, this court held, at para. 1, that s. 13(1) requires a "clear and unequivocal acknowledgement of the debt claimed". In that case, the court upheld the motion judge's finding that a mere offer to settle a claim, without acknowledging that any amount remained owing, did not amount to an acknowledgment of liability for the purposes of s. 13(1).

[33] The e-mail exchange in this case is reproduced at paragraph 13. In it, Ms. Jennings attaches the outstanding account and asks when it is going to be paid. In response, Ms. Pittman states that they have been having difficulties in paying off the account and that she will see what can be sent in the next week or so.

[34] I conclude that the words “this account” is a clear acknowledgement of the amounts owing as set out in the attachment that Ms. Jennings sent to Ms. Pittman. At the hearing, Ms. Pittman vacillated over the question of what was attached to the e-mail from Ms. Jennings. However, Ms. Jennings’ evidence was clear that it was the account statement that was attached, and this evidence was not seriously challenged on cross-examination. I have already explained why I reject Ms. Pittman’s evidence. The account statement was attached, it showed the specific debt claimed and Ms. Pittman acknowledged that debt in her response to the e-mail.

[35] I further conclude that the “I will see what I can send you in the next week or so” is an acknowledgement that there has been (and continues to be) an agreement to make monthly payments to clear up the account, as described in Ms. Jennings’ e-mail.

[36] The case before me can be contrasted with one of the decisions that Comtract relied upon. In Deloitte & Touche LLP v. Kupier 2015 ONSC 7770, the Court found that the letter that was sent in response to the demand for payment was (at para. 18) a letter of complaint about the contents of the invoices. In the same decision, Hood J. stated (at para. 15):

[15] In Montcap Financial Corp. v. Schyven, 2011 ONSC 4030 at para. 27, and in Skuy v. Greennough Corporation, 2012 ONSC 6998 at para. 56, Justice Perell in both instances referred to Middleton and stated that an acknowledgment for the purposes of the Act of an indebtedness for a liquidated sum “must, at a minimum, confirm and concede the amount that remains owing”. In West York International Inc. v. Importanne Marketing Inc., 2012 ONSC 6476, Justice DiTomaso at paragraph 92 referenced Middleton and Montcap, and repeated Justice Perell’s wording that the acknowledgment “must, at a minimum, confirm and concede the amount that remains owing”.

[37] Given my finding that the statement was attached to Ms. Jennings’ e-mail, it is clear that Ms. Pittman’s response was an acknowledgement that the money was owing. Ms. Pittman acknowledges difficulties in paying off the account. She does not complain about the invoices or otherwise deny the money is owing.

[38] I also note that section 13(10) of the Limitations Act requires the acknowledgement to be in writing and signed by the person or their agent. However, this Court has accepted that an e-mail can satisfy the acknowledgement requirement of section 13 of the Limitations Act. In each case, it is a question of authenticity. Lev v. Serebrennikov [2016] O.J. No. 1612, 2016 ONSC 2093 at para. 21. In this case, there is no dispute that Ms. Pittman sent the June 16th, 2016 e-mail. There is also no dispute that Ms. Pittman could bind the company. The only dispute in this case was what she meant when she sent it. I have resolved that dispute on the basis set out above.

[39] For these reasons, I am of the view that the limitations period was refreshed by the June 16th, 2023 e-mail from Ms. Pittman. However, section 13(9) of the Limitations Act requires that the refreshing occur before the expiry of the original limitations period. Therefore, my finding on this issue only resolves the question of whether Invoices 7366 and 7201 can be enforced.

[40] Anderson’s claim for invoices 7366 and 7201 was still within the limitations period when the limitations period was refreshed on June 16th, 2016. The invoices became due thirty (30) days after they were sent and it is at that point that the limitations period begins to run. Licata Disability Management paralegal Professional Corp. v. Triluc Enterprises Ltd., 2014 ONSC 7470 (Div. Ct.). Invoice 7201 was sent on May 31st, 2014 (due June 30th, 2014) and Invoice 7366 was sent on August 25th, 2014 (due September 24th, 2014).

[41] When the June 16th, 2016 e-mail was sent, the other three invoices were only within the limitations period if Comtract was making payments on the account, and not in respect of specific invoices. As a result, if the payments were for specific invoices, then Ms. Pittman’s e-mail cannot refresh the limitations period for the older invoices, as that limitations period had expired before Ms. Pittman acknowledged the debts.

[42] There were some partial payments that were made both before and after the June 16th, 2016 e-mail was sent. Therefore, to determine the nature of Comtract’s payments, I must consider whether those payments were for specific invoices or whether they were to the account more generally.

[43] Comtract argues that the payments that were made in November of 2015 were payments of specific invoices and, as a result, only Invoice 7201 was still outstanding when the claim was commenced in 2017. Comtract’s counsel points to the decision in Colautti Construction Ltd v. Ashcroft Development Inc. 2011 ONCA 359. In that decision, the Court stated:

[55] Common law principles of debtor/creditor law hold that a debtor may generally “appropriate” a payment in the manner it pleases and the creditor must apply it accordingly. In Waisman (c.o.b. Waisman, Ross & Associates) v. Crown Trust Co., [1970] S.C.R. 553, at p. 560, the Supreme Court of Canada adopted the following statement of Lord Macnaghten in Cory Brothers & Co. v. Owners of the Turkish Steamship “Mecca”, [1897] A.C. 286, at p. 293:

When a debtor is making a payment to his creditor he may appropriate the money as he pleases, and the creditor must apply it accordingly. If the debtor does not make any appropriation at the time when he makes the payment the right of application devolves on the creditor.

[56] Further, a “plain and irrevocable expression of intention” is required to effect an allocation: see Mount Royal/Walsh Inc. v. Jensen Star (The) (1989), [1990] 1 F.C. 199 (C.A.), at p. 213, leave to appeal denied (1989), 105 N.R. 160 n; Frankel v. The Queen, [1984] C.T.C. 259 (F.C.

[44] In this case, every cheque that Comtract sent to Anderson had an invoice number on it. As a result, the debtor (Comtract) “appropriated” the money as the debtor saw fit. Further, Anderson applied the payments in accordance with what was recorded on the cheques that were sent by Comtract. I had no evidence of any discussions between the parties that would suggest that payments were being made on the account generally.

[45] Finally, I note that the supply and installation work that was done for Comtract was for four different customers. Given that there are five different jobs and four different ultimate customers for these five different invoices, it is unsurprising that payments would be directed to specific invoices. It is also worth noting that the same customer (Automatic Coatings) was covered by both invoices 7201 and 7366.

[46] Therefore, I accept Comtract’s alternative argument that the acknowledgement on June 16th, 2016 only refreshed the limitations period for Invoices 7366 and 7201. Invoices 5906, 7028 and 7090 were all due and payable more than two years before June 16th, 2016. Therefore, Ms. Pittman’s acknowledgement could not refresh the limitations period under section 13(9) of the Limitations Act.

[47] As a result, the claim for invoices 7201 and 7366 is allowed. The Claim for the remaining three invoices is dismissed.

The Interest Rate

[48] Anderson argues that interest on the outstanding invoices should be payable at the rate of 24% per annum because the invoices state that amount as the interest rate on overdue accounts. In Anderson’s view, this interest rate is a clear part of the contract.

[49] Comtract disagrees and argues that there were never any written contracts, that the interest rate was never discussed between the parties, the quotations for the various jobs were silent as to an interest rate and that interest was never requested or charged by Anderson on overdue sums prior to the Statement of Claim being issued and counsel becoming involved.

[50] In addition to these arguments, Comtract points to the fact that Anderson accepted payments that were overdue without interest. In her testimony, Ms. Jennings acknowledged that Anderson gave their customers quite a leeway on the interest charges and did not charge interest if the customers had demonstrated an intention to pay the outstanding amounts.

[51] I start with the question of whether the interest rate is something that can form part of the contract. In some circumstances, it can. However, in his Affidavit, the President of Comtract stated that there was no discussion of any interest rate, and I accept that evidence. Counsel for Comtract then relies on the decision in Royal Group v. Core Precision, 2011 ONSC 5019, aff’d 2012 ONCA 228. In that decision, the Court stated:

[43] It seems well-settled that the mere inclusion of such an interest rate provision in an invoice for goods sold will not, in all circumstances, obligate the purchaser to pay interest at that stated rate, unless he or she has agreed to pay interest at that rate. See: Prince Albert Co-Operative Association Ltd. v. Rybka, 2006 SKCA 136, [2007] 4 W.W.R. 23 (Sask.C.A.) at para. 16-17. However, where the parties have an established business relationship, the circumstances of that relationship may establish that the parties agreed, at least impliedly, to be bound by the interest rates expressly provided on a series of invoices. See: Salit Steel v. Mondiale Development Ltd. (2009), 78 C.L.R. (3d) 54 (Ont.Master) at para. 77-81; Mackin Mailey Advertising Ltd. v. Budget Brake & Muffler Distributors Ltd., [1987] B.C.J. No. 2268 (C.A.); Irving Oil v. Whynot (1978), 33 N.S.R. (2d) 92. Of course, this will not always be the case. Even where there is an established business relationship between the parties, it may not be appropriate to infer the existence of an agreement between the parties to the application of any particular interest rate. See: Kindersley and District Co-operative Ltd. v. Bowman, (1983), 25 Sask.R. 213 (Q.B.) at para. 5-6; Marcel Baril Ltee v. 929454 Ontario Limited, [2008] O.J. No. 4506 (S.C.J.) at para. 21-22. Whether or not a contractual agreement on the issue of interest rates will be implied will, it seems, turn on the individual circumstances of each case and the nature of the particular business relationship between the parties.

[52] As Campbell J. observes, the contractual agreement on the issue of interest rates will turn on the individual circumstances of each case.

[53] That brings me to the circumstances of this case. In this case, the parties had no written contracts that I am aware of. Instead, there were quotes that were submitted by the President of Anderson to Comtract. Those quotes simply specify the price to be charged and the work to be done. There is no indication of an interest rate on any of those quotes. As a result, I am of the view that the 24% interest rate should not be imposed as it was never agreed to by the parties. The fact that the invoices sent after the work was done showed a 24% interest rate cannot amount to an agreement, as the work was already done before the invoice was sent.

[54] However, I do have discretion in terms of the interest rate that is to be charged. Section 130 of the Courts of Justice Act, R.S.O. 1990, c C.43 provides that discretion and sets out the factors that should be considered in exercising that discretion. In this case, the overwhelming factor is the changes in market interest rates. Pre-judgment interest in this matter would be set at a rate of 1.3% per annum, as the cause of action arose in 2014.

[55] That interest rate does not account for the recent changes in the market interest rates. It also does not account for the fact that this was a commercial contract and the parties would both have expected that some interest would have been paid on outstanding balances.

[56] In that respect, I note the Interest Act, R.S.C. 1985, c. I-15 stipulates, in section 3, that where a contract does not set out an interest rate and the parties have agreed that interest will be payable, the interest rate shall be five percent per annum. Although it is not entirely clear to me that the parties had an agreement to pay interest, the provision in the Interest Act is helpful in considering the exercise of my discretion.

[57] Given all of the foregoing, I have determined that the outstanding balance owing should bear interest at a rate of 5% per annum. This is a number that appropriately reflects both the recent increases in the interest rate and the fact that this is a commercial arrangement and that Comtract cannot expect Anderson to provide financing without at least some charge being levied.

[58] Based on the evidence of Ms. Jennings, the interest is payable from the date at which Comtract stopped making payments. As a result, interest on the two invoices that remain payable begins to accrue on June 17th, 2016.

Conclusion and Costs

[59] For the foregoing reasons, I order as follows:

a) Comtract is to pay the sum of $23,086.40 for the outstanding invoices owing to Anderson that are within the limitations period.

b) Comtract is to pay interest on the amounts owing at the rate of 5% per annum starting June 17th, 2016.

c) The remainder of Anderson’s claims are dismissed.

[60] This brings me to the subject of costs. The parties are encouraged to agree on the costs of this motion. Failing agreement, I note that both parties have filed bills of costs as of the hearing in April. They are required to file updated bills of costs as part of their costs submissions.

[61] Success was divided. Therefore, each party shall have fourteen (14) calendar days from today’s date to serve and file costs submissions. Those submissions are to be no longer than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[62] Each party shall have seven (7) calendar days to serve and file reply costs submissions. Those submissions are to be no longer than two (2) single-spaced pages, exclusive of case-law.

[63] Costs submissions are to be uploaded to CaseLines. A copy of those submissions is to be provided to my judicial assistant, Ryan Chan (ryan.chan2@ontario.ca) when they are uploaded. There are to be no extensions for the timelines for costs submissions, even on consent, without my leave.

LEMAY J Released: October 27, 2023