Town of Wabush Plaintiff And: Colby Management Inc. First Defendant And: Colby 2000 Limited Second Defendant And: Atlantic Industries Limited Third Defendant, 2021 NLSC 103

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Wabush (Town) v. Colby Management Inc. , 2021 NLSC 103 Date : July 20, 2021 Docket : 201701G5407 Between: Town of Wabush Plaintiff And: Colby Management Inc. First Defendant And: Colby 2000 Limited Second Defendant And: Atlantic Industries Limited Third Defendant Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 9, 2021

Summary: Pursuant to Rule 17A, the Second Defendant applied for dismissal of the Plaintiff’s claim against it. The

summary trial application was

granted. Appearances: Annette Conway and Shane Belbin Appearing on behalf of the Plaintiff Paul Burgess, Q.C. Appearing on behalf of the First and Second Defendants Brendan Dawes Appearing on behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd., 2020 NLCA 42; Marco Ltd.v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld. S.C.T.D.); Hyrniak v. Mauldin,2014 SCC 7 RULES CONSIDERED: Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Second Defendant, Colby 2000 Limited (hereinafter “Colby 2000”), filed an application under Rule 17A of the Rules ofthe Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D seeking dismissal of the claim by the Plaintiff, the Town of Wabush(hereinafter the “Town”), against Colby 2000. [2] The Town’s claim against the Defendants is for damages arising from an “inadequate, unsuitable and inappropriate design” ofa retaining wall by the Third Defendant, and “improper construction” of the wall by the First and Second Defendants (paragraph 34 ofthe amended statement of claim). The retaining wall was built as part of a residential development on Snow’s Drive in the Town ofWabush.

Building permits had been issued by the Town for properties on the east side of Snow’s Drive; these permits were issued toColby Management Inc. Throughout 2012 and 2013, the retaining wall was allegedly built without a permit at the rear of theseproperties. [3] The Second Defendant’s application seeks dismissal of the action on the basis that Colby 2000 had no role whatsoever in theconstruction of the retaining wall. RULE 17A THRESHOLD ISSUE [4] A Rule 17A application requires determination of the threshold issue of whether the matter should proceed to a

summarytrial. At the beginning of this application, the threshold issue was addressed with submissions by Counsel for the Plaintiff, and Counselfor the First and Second Defendants. Counsel for the Third Defendant attended the application by teleconference, but took no positionand made no submissions throughout the entire application. [5] After hearing the parties on the threshold issue, the Court gave an oral ruling with reasons, following the threshold questionsidentified in the “Rule 17A

Summary Trial Application Decision Tree”, as set forth in the Court of Appeal’s decision in BrookConstruction

(2007) Inc. v. North Atlantic Cement and Construction Ltd., 2020 NLCA 42 (hereinafter “Brook Construction”). The Courtdetermined that the threshold was passed, and that the matter was to proceed onto

summary trial. This is the

summary trial decision. RULE 17A

SUMMARY TRIAL

[6] In accordance with the decision tree from Brook Construction, the questions for determination in this

summary trialapplication are, as follows: i. With respect to the Town’s claim against Colby 2000, is there a genuine issue meriting a conventional trial? ii. If so, can the Court find the facts on the existing record to decide the question of fact or law? iii. If the Court can find the facts on the existing record, is it nevertheless unjust to decide the question on the application?

ANALYSIS [7] Colby 2000, as applicant, must establish that there is no genuine issue for trial; or if there is a genuine issue for trial, then therecord allows the Court to find the necessary facts to decide that issue, and it would not be unjust to the Town to do so (Marco Ltd. v.Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld.

S.C.T.D.), hereinafter “Marco”, atparagraph 76, principle 2). [8] In accordance with Marco, as per principle 9 at paragraph 76, (and as referenced in Brook Construction at paragraph 29), agenuine issue for trial exists if the issue is “not spurious” and “relates to a material fact or point of law that is necessary to be decided toresolve the ultimate controversy between the parties”. [9] As stated, Colby 2000 satisfied the threshold for the Rule 17A application.

Consequently, the Town, as responding party,must “demonstrate that there is a genuine issue for trial” by putting its “best foot forward”, as described in principle 7 from Marco atparagraph 76, as follows: 7. If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his orher position, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial. This cannot beaccomplished by showing an issue raised by the pleadings.

The argument on a Rule 17A application takes place at a level below thepleadings within the forums of evidence and legal argument. The responding party must therefore "put his best foot forward" sincefailure to do so may lead the court to conclude that there is in fact no genuine issue for trial.

The responding party should therefore setout in affidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court cansee that there is a genuine issue of fact or law that is joined and has to be resolved before the court can make an ultimate determinationon the merits. [10] In Brook Construction, the Court of Appeal further described how a respondent can “put his best foot forward” at paragraph25, as follows: 25 … In this regard, the defendant has to "put his best foot forward" from the best sources available and cannot argue that the mattershould go to a full trial where other evidence under his control could have been presented on the application but was not.

Limited cross-examination on affidavit evidence is permitted and the court may draw an adverse inference from the failure of a party to cross-examineon or file affidavit evidence in reply to, another affidavit (rules 17A.02(3), (5)). [11] The Town submitted that the genuine issue for trial is whether Colby 2000 was responsible in any way, for the design andconstruction of the retaining wall. [12] In its amended statement of claim, the Town referred collectively to Colby Management Inc. and Colby 2000 as “Colby”.

TheTown asserted that the retaining wall was defective, and that “Colby” failed to construct the retaining wall in accordance with itsobligations to the Town, and further that “Colby” was negligent. There is also a claim for negligent and/or fraudulent representationpertaining to the allegation that “Colby” purportedly represented that the retaining wall was designed by a company Acuren Group Inc.(“Acuren”), when the design was completed by the Third Defendant (“A.I.L.”). [13] In its statement of defence, Colby 2000 denies having any involvement with the construction of the retaining wall.

Thisassertion is supported by the statement of defence of Colby Management Inc. [14] In response to the Rule 17A application, the Town filed the affidavit of Melanie Lafosse, who is now the director of Planningand Land Use for the Town. From June 2010 to April 2013, Melanie Lafosse was a Municipal Enforcement Officer for the Town. [15] Melanie Lafosse’s affidavit indicated the following: • A development agreement was entered between the Town and Caplyn Holdings Inc. in June of 2006 to develop the Jean LakeSubdivision.

The retaining wall was constructed for the development of Snow’s Drive, which was part of the Jean Lake Subdivision (asper paragraphs 2 and 3 of the Lafosse affidavit). • Building permits for properties on the east side of Snow’s Drive were issued from November 2010 to October 2012. Thesepermits identified Colby Management Inc. as the owner of the properties.

The permits did not reference construction of a retaining wall(paragraphs 4 and 5 of the Lafosse affidavit). • The Town became aware that through 2012 and 2013, a retaining wall was constructed on the rear of the properties on the east sideof Snow’s Drive (paragraph 6 of the Lafosse affidavit). • Starting in October of 2012, concerns respecting the retaining wall were raised by the Town in emails sent to Tony Parsons, GaryMcCarthy and Gary Archibald. The email accounts of Mr. Parsons, Mr. McCarthy and Mr. Archibald reference “Colby”. For example,Mr.

Parsons’ email account was tony-colby@nf.aibn.com (see paragraphs 7 to 12 of the Lafosse affidavit). • A meeting was held in November of 2012 to discuss the concerns pertaining to the development and the retaining wall. The

meeting was attended by Town staff, Town council members, Tony Parsons and Gary McCarthy. The minutes of the meeting stated that Mr. Parsons was with Caplyn Holdings Inc.; the minutes also indicated Tony Parsons and Gary McCarthy appeared on behalf of “Colby Management” (paragraphs 13 and 14 of the Lafosse affidavit). • In 2013, email requests ensued from the Town to Mr. McCarthy requesting design plans for the retaining wall (paragraphs 15 to 17 of the Lafosse affidavit). • On May 15, 2013, following a meeting with Council, Mr.

Parsons sent an email to the Town regarding the Town’s development process, and stating that the Town’s actions would lead to litigation “not only between Caplyn, Colby and the Town, but also existing purchasers”. Ms. Lafosse stated it was unclear what company was being referenced as “Colby” (paragraphs 18 and 19 of the Lafosse affidavit). • Further communications with respect to the retaining wall were exchanged between the Town referring to Mr.

Parsons in his capacity as president of Caplyn Holdings Inc. (paragraphs 20, 21, 22 and 33 of the Lafosse affidavit). • The Town was provided with design plans purportedly for the retaining wall, stamped on behalf of Acuren Inc., and dated as issued for construction on May 15, 2013; the plans stated they were prepared for “Colby Construction” (paragraphs 23 and 24 of the Lafosse affidavit). • A representative of Acuren Inc. emailed the Town and indicated that Acuren was not responsible for construction administration, and referred to a third party company to be “hired by Colby”. Ms.

Lafosse again stated it was unclear what company was being referenced as “Colby” (paragraphs 25 to 27 of the Lafosse affidavit). Acuren indicated to the Town that the construction of the wall was not in accordance with its drawings (paragraph 28 of the Lafosse affidavit). • Deficiencies in the retaining wall were identified for the Town. Correspondence was forwarded by the Town to Mr. Parsons, in his capacity as president of Caplyn Holdings Inc., in which the Town indicated it would initiate corrective work and recover costs from the developer if necessary (paragraphs 29 to 33 of the Lafosse affidavit). • Mr.

Parsons responded to the letter sent to him in his capacity as president of Caplyn Holdings Inc., and he indicated that more information was required to determine whether the concerns related to Caplyn Holdings Inc. or Colby Management Inc. (paragraph 34 of the Lafosse affidavit). • A geotechnical analysis of the wall was prepared for the Town by Stantec (paragraphs 35 to 38 of the Lafosse affidavit). The report identified safety concerns with respect to the retaining wall. In response, Mr. Parsons retained LVM Maritime Testing to also prepare a geotechnical report. That report was addressed to Mr.

Parsons through Colby Management Inc. The LVM report stated: “It is understood that the Snow’s Drive portion of the Jean Lake Subdivision was constructed by Colby Construction…” (see paragraphs 39 to 41 of the Lafosse affidavit). • From the LVM report, the Town was notified of the A.I.L. design of the wall (paragraph 42 of the Lafosse affidavit).

The A.I.L. design stated it was prepared for “Colby Construction” (paragraph 46 of the Lafosse affidavit). • On a quotation prepared by A.I.L. in September 2012 for the retaining wall, the customer is listed as “Colby Construction”, with contact as Tony Parsons (paragraph 48 of the Lafosse affidavit). • A purchase order for the retaining wall is on the letterhead for Colby Management Inc. (see paragraph 49 of the Lafosse affidavit). • The Town ultimately engaged a company to repair the retaining wall.

The affidavit describes the process, and the costs of repairing the wall, and alleges that the Town incurred costs of close to 2.7 million dollars (see paragraphs 53 to 61 of the Lafosse affidavit). • Further with respect to the corporate entities, Ms. Lafosse stated at paragraphs 62 to 69 of her affidavit, as follows: “62. Throughout the history of this matter, the Town regularly interacted with Tony Parsons. I am informed by my counsel, and do verily believe, that Mr.

Parsons is or was a director of Colby Management Inc., Colby Construction Limited (prior to its amalgamation), Mista-Shipu Construction Ltd. (prior to its amalgamation), Colby 2000 Limited, and Caplyn Holdings Inc. 63. All five of these companies were involved in developments in Wabush in the early 2010’s, and Mr. Parsons was the Town’s contact person for all five companies. 64. When the Town dealt with Mr. Parsons, it was common to discuss in one meeting issues relating to developments that any combination of the four companies were involved in. 65. While the Town knew at all times that Mr.

Parsons was speaking on behalf of a company, it was not clear what company Mr. Parsons was speaking on behalf of at any given time. 66. When the Town interacted with Gary McCarthy and Gary Archibald, it was evident from their email addresses that they were affiliated with “Colby” but it was not clear if this was Colby Management Inc., Colby Construction Limited, or Colby 2000 Limited.

67. As both the Acuren and AIL designs state that they were prepared for Colby Construction, it is the understanding of the Town that these designs were procured by Colby 2000 which was the post-amalgamation name for Colby Construction Limited. 68. The Town has no knowledge as to the exact role of Colby 2000 in implementing the designs, but believes they played at least some role in the process. 69. Contrary to the assertion in paragraph 9 of Mr. Parsons affidavit filed in support of this application dated October 23, 2020, it does appear that Colby 2000 had employees during 2012 and 2013.

In October 2012, I was engaged in email correspondence with Dawn Coombs regarding landscaping deposits for Colby Management Inc. on Snow’s Drive. Ms. Coombs email addresss at the time was < dawn_colby@nfld.net >, and her email signature included both Colby Management Inc. and Colby 2000 Ltd. A true copy of the email correspondence is attached to this affidavit as Exhibit “N”.” [ 16 ] Paragraph 68 of Ms.

Lafosse’s affidavit encapsulates the Town’s position, being that the Town believed that Colby 2000 played a role in implementing the design of the retaining wall, but the Town did not know what the exact role was. [ 17 ] The affidavit of lawyer Shane Belbin was also filed on behalf of the Town. In Mr. Belbin’s affidavit, he attached documentation as follows: • Mr.

Belbin attached a printout of the online listing of contracts reported by government-funded bodies (without tender invitations) for February 2013, which lists a contract from the Department of Transportation & Works to “Colby Construction Ltd.” for the repair of a waterline break at the College of the North Atlantic in Labrador City. The award date for the contract was July 6, 2012. • Mr. Belbin’s affidavit attached a search from the Companies and Deeds Online platform (“CADO”) listing deeds involving Colby 2000 in the Town of Wabush.

The search identified a number of conveyances and other transactions involving Colby 2000. • Mr. Belbin’s affidavit also attached a search from CADO involving Colby Construction Limited. This document showed a notice of directors for Colby Construction Limited as filed on April 25, 2007. The directors identified were Tony Parsons, Carol Parsons, Dawn Coombs, Lance Parsons and Gary Archibald. • Mr. Belbin further attached to his affidavit a copy of a LinkedIn page for Gary McCarthy. The search was conducted on April 7, 2021. On the LinkedIn page under the heading “Experience” Mr.

McCarthy is indicated as having worked as a site superintendent with Colby 2000 Limited from September 2009 to January 2015. [ 18 ] The Applicant’s evidence was provided by Tony Parsons. Indeed, he gave evidence in his capacity as director of both Colby 2000 and Colby Management Inc. He swore two affidavits (with documents attached to the second affidavit), and he was cross-examined by the Plaintiff’s Counsel. Further, in response to Mr. Belbin’s affidavit, Mr. Parsons provided additional documents which were entered as exhibits prior to his cross-examination. [ 19 ] According to Mr.

Parsons’ evidence, he had also been director of Colby Construction Limited, which had been incorporated in 1985. Colby 2000 was a separate company incorporated in July of 2000. Colby Construction Limited has not existed since January 1, 2009; on that date, Colby Construction amalgamated with Colby 2000, and continued as Colby 2000. Colby 2000 never operated under the trade name “Colby Construction”. Colby 2000 further amalgamated with another company, Mista-Shipu Construction Limited, on July 1, 2013, and again continued with the name Colby 2000. [ 20 ] According to Mr.

Parsons’ evidence, Colby 2000 had nothing whatsoever to do with the retaining wall. Colby 2000 never participated in the construction of the retaining wall, or any retaining wall, in the Town of Wabush; and Colby 2000 played no

part in any construction activity in the Town of Wabush. Further, Colby 2000 never requested A.I.L., or any other entity, to prepare drawings in relation to the retaining wall. As well, Colby 2000 did not enter a contract, or written agreement, with Caplyn Holdings Inc. in relation to this matter. [ 21 ] Mr. Parsons’ evidence was that Colby 2000 was formed as an investment or holding company. He explained that Colby 2000 purchased land and buildings, and then sold them; and that Colby 2000 was not involved in development. Mr.

Parsons was referred to the CADO printout in which numerous transactions listed Colby 2000 as a party to land transactions in Wabush. He explained that this was the business of Colby 2000, being the purchase and sale of properties. [ 22 ] Mr. Parsons’ evidence was also that Colby 2000 did not have any employees prior to 2014. Specifically, his evidence was that neither Gary McCarthy, nor Gary Archibald, nor Dawn Coombs were employed by Colby 2000 at any time material to this action.

He elaborated that Gary Archibald was never employed by Colby 2000; and that Gary McCarthy was only briefly employed by Colby 2000 for about a year in 2014. Dawn Coombs has been a director of Colby 2000 since January of 2011; but it was not until 2014 that she became an employee of Colby 2000. [ 23 ] Mr. Parsons more specifically dealt with the suggestion that Gary McCarthy worked for Colby Construction from 2009 to 2015, as was suggested by the document with Mr. McCarthy’s LinkedIn bio. Mr.

Parsons submitted a document (marked as Exhibit T.P. # 2), which was the record of employment of Gary McCarthy with Colby 2000. The record of employment identified Mr. McCarthy’s first day of work for Colby 2000 as being December 29, 2013, and his last day worked as January 17, 2015. Further, attached to that exhibit were T4s and payroll records for Gary McCarthy issued by Colby Management Inc. for the years 2010 to 2013, inclusive. Mr. Parsons also provided a T4 and payroll records for Gary McCarthy from Colby 2000 for the year 2014.

This evidence supported the suggestion that Gary McCarthy worked for Colby Management Inc. up to the end of 2013, and that he did not work for Colby 2000 until

2014. [ 24 ] Further, Mr. Parsons’ affidavits indicated that he was aware of numerous written communications between the Town of Wabush and Colby Management Inc. However, to his knowledge the only reference to Colby 2000 was a single reference in an email signature line from Ms. Coombs, which email signature line also referenced Colby Management Inc. in the line preceding the reference to Colby 2000. This was the emailed document in October of 2012 referenced in the Lafosse affidavit, at paragraph 69. [ 25 ] Further on this point, as stated, Mr.

Parsons’ evidence was that Dawn Coombs was a director since 2011 for Colby 2000, but not an employee of Colby 2000 until 2014. In cross-examination, Mr. Parsons was asked whether the directors of Colby 2000 were involved in real estate purchases and sales, and sending emails to the Town of Wabush. His evidence was he couldn’t comment on what the directors did, however it was he who ultimately approved or denied purchases and sales. [ 26 ] Further, and with respect to Gary Archibald, Mr. Parsons’ evidence was that Mr. Archibald was never an employee of Colby 2000; but he was a director around 2007.

This directorship ended in 2008. The evidence suggested that Mr. Archibald did have involvement with Colby Management Inc. Mr. Parsons’ evidence referenced Gary Archibald, on behalf of Colby Management Inc., receiving a quotation in relation to soil testing for the retaining wall. [ 27 ] Mr. Parsons’ evidence was also that there was no overlap in employees’ duties between the two companies, Colby 2000 and Colby Management Inc. [ 28 ] Further on this point, Mr. Parsons was referred to an email from Gary McCarthy to Melanie Lafosse, Mr.

Parsons and Ken Anthony, which was dated May 12, 2014 with the subject being the retaining wall. That email was in reply to an email from Ms. Lafosse to Mr. Parsons, Mr. Anthony and Mr. McCarthy indicating that there were issues with the retaining wall on Snow’s Drive, and asking what was going to be done with the wall. Gary McCarthy’s response to Ms. Lafosse stated: “Melanie, I was informed of this last week and I will be in Wabush on Wednesday of this week to have a look at the wall. Gary McCarthy” [ 29 ] Mr.

Parsons was asked to explain why Gary McCarthy would offer to have a look at the wall if Colby 2000 had nothing to do with the retaining wall, and if Gary McCarthy was employed with Colby 2000 in 2014. Mr. Parsons’ response was that he didn’t know why, and couldn’t know why without knowing the sequence of events and circumstances, and without knowing the full chain of the emails. He speculated that in 2014 Gary McCarthy looked after properties in Wabush, and it was possible he could have just been being kind to Ms. Lafosse saying he would drop by. [ 30 ] Mr.

Parsons’ evidence suggested that Colby Management Inc. was the company responsible for the retaining wall; and references to “Colby Construction” on design plans were in error. His evidence confirmed that there were two designs prepared for the retaining wall; one by Acuren and the other by A.I.L. His evidence was that Acuren had been initially asked to design the retaining wall, but A.I.L. was subsequently contacted by Colby Management Inc. for a quote. Mr.

Parsons’ affidavits further supported his evidence that it was Colby Management Inc. who interacted with both Acuren and A.I.L., with respect to the retaining wall. [ 31 ] To elaborate, in one of Mr. Parsons’ affidavits, he referenced written communications in the summer of 2012 between Acuren and another company (referred to as “Armtec”); in which Acuren sought a price for the retaining wall. This resulted in a “revised quotation” document being provided from Armtec to “Colby Management”, and to the attention of Gary Archibald and Tony Parsons in September of 2012. Mr.

Parsons provided a copy of that revised quotation. [ 32 ] Mr. Parsons’ affidavit also indicated that there had been a sub-contract between Acuren and Colby Management Inc. pertaining to the design work on the subject retaining wall. Mr. Parsons provided related invoices with respect to the retaining wall as rendered by Acuren to Colby Management Inc. Mr. Parsons also provided documentation indicating that Acuren’s invoices were satisfied by Colby Management Inc. [ 33 ] Mr.

Parsons further indicated in his affidavit that a credit application was made to A.I.L. by Colby Management Inc., along with a deposit, around September 2012, and he provided supporting documentation with respect to same. He further provided documentation which supported his assertion that it was Colby Management Inc. who paid the invoices relating to the retaining wall, which were issued by A.I.L. in the Fall of 2012. [ 34 ] Mr. Parsons also dealt with the reference to “Colby Construction” in the online listing of government contracts for February of 2013.

His evidence was that Colby Construction did not exist on the award date for the contract, being July 6, 2012. Further, his evidence suggested that the contract referenced was one between the Department of Transportation & Works and Colby Management Inc. He provided a document showing an invoice dated December 12, 2012 from Colby Management Inc. to Transportation & Works, which was in relation to the College of the North Atlantic waterline break. Similarly, the online listing indicated that the contract was for a repair of a waterline break at the College of the North Atlantic in Labrador.

His evidence was that the work was done by Colby Management Inc., who invoiced Transportation & Works for the work. Mr. Parsons further provided a document which suggested that there was a deposit of the same amount of money invoiced; the deposit came from the Government of NL and went into Colby Management Inc.’s account. [ 35 ] Mr. Parsons was referred to Ms. Lafosse’s affidavit which shows A.I.L.’s quote for the retaining wall prepared on September 6, 2012. That quote identified the customer as “Colby Construction”, and the contact was identified as Tony Parsons. Mr. Parsons’

evidence suggested this was an error; and that he did correct A.I.L., and got a quote for Colby Management Inc. Further, as already stated, his evidence (with supporting documentation) showed that an application for credit was made to A.I.L. from Colby Management Inc. around September of 2012, and that A.I.L.’s invoices relating to the retaining wall were paid by Colby Management Inc. [ 36 ] Further, as stated, with respect to the reference to “Colby Construction” on Acuren’s design plans, Mr. Parsons’ evidence suggested that this was also an error.

His evidence was that Colby Construction had done business with Acuren for over 25 years on various projects; however, Colby Construction did not exist when Acuren was asked to do the plans. Mr. Parsons was asked whether he had contacted Acuren to correct the reference to “Colby Construction”; he did not and explained that he never even actually noticed it. In any event, as stated, Mr. Parsons provided invoices pertaining to the retaining wall which were from Acuren, rendered to and paid by Colby Management Inc. [ 37 ] Mr.

Parsons was also referred to the report from LVM Maritime Testing, which had also referred to “Colby Construction”. He again suggested this was an error. Mr. Parsons evidence was that LVM did alot of work for Colby Construction over time, but he never told LVM that the work was being done for Colby Construction. He suggested that he couldn’t read their minds, and understand why LVM had referenced “Colby Construction”. [ 38 ] In cross-examination, Mr. Parsons was also referred to A.I.L.’s statement of defence which indicated that he had identified himself as an employee of Colby Construction to A.I.L. Mr.

Parsons’ evidence was that was incorrect; and he did not identify himself as such. His evidence was that he told A.I.L. that he did construction and project management with Colby Management Inc. A.I.L. did not refute Mr. Parsons’ evidence. With respect to the Town’s claim against Colby 2000, is there a genuine issue meriting a conventional trial? [ 39 ] After considering the pleadings, the evidence at the

summary trial, and the submissions of Counsel, I am satisfied that there is a genuine issue for trial with respect to the Town’s claim against Colby 2000. Specifically, the issue requiring determination is whether Colby 2000 had any role with respect to the construction of the retaining wall. [ 40 ] The issue seems to emanate, in part, from the confusion created by the common use of the word “Colby” in the companies Colby Construction Limited, Colby Management Inc. and Colby 2000; as well as by Mr. Parsons’ directorship in all three companies.

Although the evidence is that a company named Colby Construction has not existed since 2009, it did amalgamate with Colby 2000, and the amalgamated company continued as Colby 2000 Limited. Consequently, the post-amalgamation references to “Colby Construction” or “Colby” in relation to the retaining wall could have reasonably caused the Town to believe that Colby 2000 may have played a role in the construction of the retaining wall.

Because the Town is seeking to recoup its expenditures for fixing the allegedly defective wall, it is important to determine which “Colby” company, or companies, bears responsibility for its construction. [ 41 ] To elaborate, the Town indicated that it had no knowledge of Colby 2000’s exact role with respect to implementing the design of the retaining wall; however, the Town believed that Colby 2000 Limited played some role (paragraph 68 of Melanie Lafosse’s affidavit). In the

summary trial application, the Town put forward an evidentiary basis, albeit limited, supporting its confusion and belief as to the purported role of Colby 2000 with respect to construction of the retaining wall. [ 42 ] I have already reviewed the Town’s evidence. To summarily recap, the Town was provided with design plans for the retaining wall from Acuren and A.I.L., both of which indicated that the plans were prepared for “Colby Construction”. Further, a quotation relating to the wall prepared by A.I.L. lists the customer as “Colby Construction”.

In addition, an expert report prepared by LVM Maritime Testing in relation to the wall referred to “Colby Construction”. [ 43 ] The Town also referred to communications which support the confusion on the Town’s part as to which company was responsible for the wall. For example, there was evidence of communications with Tony Parsons, Gary McCarthy and Gary Archibald in 2012 in which their emails reference “Colby”. Also, Acuren referred to “Colby” in an email to the Town. Further, an email from Dawn Coombs in 2012 shows her signature as referencing both Colby Management Inc. and Colby 2000 Limited.

In addition, Gary McCarthy’s “LinkedIn” page indicated that he worked for Colby 2000 Limited from September 2009 to January 2015. Gary McCarthy also communicated with Ms.

Lafosse on the retaining wall in 2014, while working for Colby 2000. [ 44 ] In addition, the Town referred to the online listing of contracts reported by government funded bodies for February 2013 showing a contract between the Department of Transportation & Works and Colby Construction. [ 45 ] This is not a circumstance where the Town has raised no evidence pertaining to the possibility of Colby 2000 having played a role with respect to the retaining wall.

The Town has put forth evidence reasonably suggesting that there is confusion as to the role of Colby 2000 with respect to the construction of the retaining wall. If not satisfactorily resolved prior to trial, then this is an issue which would have to be addressed in the course of trial.

Can the Court find the facts on the existing record to decide the issue? [ 46 ] Although I have found that there is a genuine issue raised by the Town, after considering the pleadings, the whole of the evidence and the submissions, I am satisfied that the issue can be decided based on the existing record. [ 47 ] It is my view that the issue of the role of Colby 2000 with respect to the retaining wall was fully and satisfactorily dealt with by Tony Parsons’ affidavit evidence, documentary evidence, as well as in his cross-examination.

I find that he was a credible witness, and I accept that his evidence is reliable. [ 48 ] As stated, Tony Parsons testified on behalf of both Colby 2000 and Colby Management Inc. He clearly described the relevant corporate history. Despite references to “Colby Construction” by Acuren, A.I.L., LVM, and the Department of Transportation & Works, it is clear that the company known as “Colby Construction” no longer existed with that name, after January 1, 2009. Rather, it had amalgamated with Colby 2000, and the amalgamation continued as Colby 2000.

As a result, any references to “Colby Construction” in relation to the retaining wall are mistaken references. Further, I find that these mistaken references could only be corrected by referring

to Colby Management Inc., not by referring to Colby 2000. I make this finding based on the evidence at the

summary trial. [ 49 ] I accept Mr. Parsons’ evidence that Colby 2000 was an investment company at the relevant time, being the time when the retaining wall was constructed in 2012 and 2013. I accept his evidence that Colby 2000 played no role whatsoever in the construction of the retaining wall. I accept his evidence that Colby 2000 did not have employees at the relevant time, being 2012 and 2013. Specifically, I accept that Gary Archibald, Gary McCarthy and Dawn Coombs were not employees of Colby 2000 at the relevant time period when the wall was designed and constructed. Consequently, I am also satisfied by Mr.

Parsons’ evidence that Mr. McCarthy’s reference to his employment being with Colby 2000 from 2009 to 2015 (in the LinkedIn page) was a mistake. [ 50 ] I also accept Mr. Parsons’ evidence that there was no overlap in employees’ activities between Colby 2000, and Colby Management Inc. Granted, there was no evidence put forth from Mr. McCarthy to explain his email of May 12, 2014 to Ms. Lafosse. Without his evidence, any explanation would be speculative. Nevertheless, I was not satisfied that an explanation from Mr. McCarthy was material, or required, to make a determination. Further, as stated, I accept Mr.

Parsons’ evidence that Colby 2000 played no role with respect to the retaining wall. [ 51 ] Indeed, I accept all of Mr. Parsons’ evidence, and find that Colby Management Inc. played a role with construction of the retaining wall, but Colby 2000 did not. Mr. Parsons’ evidence confirmed that the quote for the retaining wall design, the application for credit, and the deposit, involved Colby Management Inc. Further, the evidence was that Colby Management Inc. paid the invoices pertaining to the retaining wall. [ 52 ] Indeed, after considering the whole of the evidence, I am satisfied that Mr.

Parsons resoundingly addressed the confusion regarding which company was involved with the retaining wall. Again, on the balance of probabilities, I am satisfied that Colby 2000 Limited played no role with respect to the retaining wall. [ 53 ] I add that A.I.L. attended the

summary trial hearing, but did not participate. Consequently, A.I.L. did not contradict Mr. Parsons’ evidence, nor Colby 2000’s Counsel’s submissions regarding the role of Colby 2000 with respect to the retaining wall. Despite the contents of A.I.L.’s pleadings which refer to Colby 2000, I infer that A.I.L. had no evidence to contradict Mr. Parsons’ evidence. Is it nevertheless unjust to decide the question on the application? [ 54 ] As to whether it would be unjust to decide the question raised by this

summary trial, I again refer to the Marco decision where, at paragraph 76, factor 15, the Court stated, as follows: 15. The requirement that the judge must also be satisfied that it is not "unjust" to decide the issues on the application reinforces the notion that the chambers judge should be satisfied that the court has a sufficient handle on the facts to make an informed decision. Thus, if it is clear that there is other material evidence available which might materially affect the result and the chambers judge concludes that he or she would not be deciding the case against the true factual background, he or she might well conclude that it would be unjust to deal with the matter by way of

summary trial. While a party has an obligation to put his or her best foot forward, there might well be a valid explanation for the absence of such other evidence, for example, if the information is in the hands of the other party. In addition, other factors that would have to be considered by the court to determine the "justice" of proceeding would be: (

a) the amount involved; (

b) the complexity of the matter; (

c) its urgency; (

d) any prejudice likely to arise by reason of delay; (

e) the cost of taking the case forward to a conventional trial in relation to the amount involved; (

f) the course of the proceedings to date. [ 55 ] Considering the foregoing factors, I agree with the submission by the Town that the amount involved in this claim is not insignificant. It is a 2.7 million dollar claim. Further, I agree that there was no apparent urgency in determining this issue; the matter has not been set down for trial. [ 56 ] Having said this however, I would not characterize the “genuine issue” as complex. In my view, it is a question which likely could have been resolved through discoveries, or interrogatories. In any event, Mr.

Parsons has more than satisfactorily responded to the sources of the Town’s confusion, or belief, regarding the role of Colby 2000 in relation to the retaining wall. [ 57 ] On this point, the Town submitted that key evidence was in the control of A.I.L., Acuren and LVM; and that such evidence was not before the Court. The Town submitted that it was the responsibility of Colby 2000 to bring forth that evidence from A.I.L., Acuren

and LVM, in order to corroborate Mr. Parsons’ evidence. The Town noted that Colby 2000 did not do discoveries to determine the positions of these other companies, and to clarify the reason for their reference to “Colby Construction” in their documentation. Similarly, there was no evidence from Ms. Coombs, Mr. Archibald, or Mr. McCarthy. The Town suggested that corroboration, and a more robust evidentiary record, was required to have been submitted before the Court by Colby 2000. [ 58 ] With respect, I cannot agree with the Town’s submission in this regard. I am satisfied by the compelling evidence of Mr.

Parsons that Colby 2000 had no role whatsoever with respect to the retaining wall. Considering the unrefuted and compelling nature of Mr. Parsons’ evidence, it is my view that all necessary material evidence is before the Court. He squarely dealt with the various sources of the Town’s belief that Colby 2000 was somehow involved. [ 59 ] Further on this point, the Town’s implicit suggestion that there could be conflicting evidence not yet before the Court, is an entirely speculative suggestion, and without a persuasive evidentiary basis.

I add that there was no request by the Town to postpone the hearing of this Rule 17A application, in order that the Town could proceed to discoveries or interrogatories, for the purpose of seeking such information. Further, I note that the Town did not suggest that in order to put its “best foot forward”, it was necessary to obtain more information from A.I.L., Acuren, LVM, Gary McCarthy, Gary Archibald, Dawn Coombs, or Transportation & Works. [ 60 ] Further on this point, A.I.L. was apparently the company who ultimately designed the retaining wall. Although A.I.L. was represented at the

summary trial application, A.I.L. did not bring forward any evidence, and did not make submissions. Indeed, A.I.L. did not attempt to refute the evidence of Mr. Parsons. Based upon that, I can only conclude that A.I.L. cannot refute the evidence of Mr. Parsons, being that Colby 2000 did not play any role with respect to the retaining wall. [ 61 ] In

summary, while I did find that the issue raised by the Town was a genuine issue for trial, it was not a complex issue, and the issue likely could have been resolved prior to trial through interrogatories or discoveries. Based on the evidence heard at the

summary trial, I am satisfied that there is nothing that the Town has put before the Court which detracts from Mr. Parsons’ compelling evidence. I can appreciate that the Town was reasonably confused regarding which “Colby” company was involved in implementing the design of the retaining wall. However, based on the evidence at the

summary trial, I am satisfied that there is no foundation whatsoever for the Town continuing with the belief that Colby 2000 played any such role. [ 62 ] Finally, I add that Colby 2000 would likely be prejudiced by delaying the determination of this issue until trial. Colby 2000 is a separate company from Colby Management Inc. There has been no suggestion that the corporate veil of either company should be pierced; and no suggestion that Colby Management Inc. acted at any time as an agent for Colby 2000.

If the determination of the issue was delayed, then Colby 2000, as a separate entity from Colby Management Inc., would have to sit through the trial of this matter even though the evidence before the Court in this application establishes that it played no role whatsoever with respect to the retaining wall. Although both companies currently have the same legal counsel, there would still be extra time at trial, as well as extra costs arising from Colby 2000 having to adduce evidence and deal with the issue of the role of Colby 2000 in relation to the retaining wall.

Even though the Town’s claim is for a significant amount, this does not justify Colby 2000 continuing as a defendant when the evidence at this

summary trial resoundingly established that Colby 2000 played no role with the retaining wall. [ 63 ] Finally, I add that in determining this application, I am mindful that in Hyrniak v. Mauldin , 2014 SCC 7 , the Supreme Court of Canada suggested caution regarding the use of

summary trial for a single defendant. At paragraph 60 they stated, as follows: 60 The "interest of justice" inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach. [ 64 ] In my view, a Rule 17A determination of the Town's claim against Colby 2000 is the "most proportionate, timely and cost effective approach". The resolution of the issue in this application removes one of the important issues for determination at trial.

The record permitted such a determination, and it is just to do so before the trial; particularly considering the strength of the evidence of Colby 2000 on the issue. Mr. Parsons’ compelling evidence allowed the determination that Colby 2000 had no involvement with construction of the retaining wall. At the same time, his evidence suggested that Colby Management Inc. was responsible for construction of the wall. [ 65 ] Based on the foregoing analysis, and after considering the facts as set forth in principle 15 (at paragraph 76) from Marco , I find that it would not be unjust to decide the issue raised in this

summary trial; specifically, the issue of whether Colby 2000 played any role with respect to the retaining wall. Again, based on the evidence and submissions, I find that Colby 2000 did not play any role with respect to the retaining wall, at the time material to the Town’s action. CONCLUSION [ 66 ] After considering the pleadings, the whole of the evidence at the

summary trial, the submissions of all Counsel, and the law, I find it to be appropriate and just to grant the

summary trial application of Colby 2000. Consequently, the Town’s action is hereby dismissed against Colby 2000. [ 67 ] With respect to costs, I have considered that it was determined that there was a genuine issue for trial. However, it is my view that the issue could have been resolved through the pretrial processes of discovery and interrogatories. I am exercising my discretion to award costs of this application to Colby 2000 on a party party basis, in accordance with Column 4 of Rule 55 of the Rules of the Supreme Court . [ 68 ] Costs are not awarded to the First and Third Defendants. The First Defendant was not the Applicant. The Third Defendant did

not bring forward evidence and did not make submissions. _____________________________ Valerie L. Marshall Justice