North Atlantic Cement v. Construction Ltd., 2019 NLSC 142

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : North Atlantic Cement and Construction Ltd. v. Brook Construction

(2007) Inc. , 2019 NLSC 142 Date : July 24, 2019 Docket : 201701G1276 Between: North Atlantic Cement and Construction Ltd. PLAINTIFF And: Brook Construction

(2007) Inc. DEFENDANT Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: February 21, 2019 and May 27, 2019

Summary: The Plaintiff seeks

summary judgment or a

summary trial on account of services rendered to install a sewer line. The Plaintiff has shown that it is, prima facie , entitled to

summary judgment. The Defendant has failed to discharge the onus upon it to show that there is a genuine issue for trial. Appearances: John R. Sinnott, Q.C. Appearing on behalf of the Plaintiff

Adam J. Crocker Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Hryniak v. Mauldin, 2014 SCC 7; Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION

Summary Trial Rules and Case Law [1] The Plaintiff’s Application is taken pursuant to Rule 17A of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.D, the pertinent parts of which read as follows: 17A.01

Summary Trial 17A.01(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list,apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or partof the claim in the statement of claim, as the case may be. … 17A.03 Disposition of Application

(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summaryjudgment accordingly.

(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment infavour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide thequestions of fact or law; or (

b) it would be unjust to decide the issues on the application.

(3) Where the Court is satisfied that the only genuine issue is the amount to which a party is entitled, the Court may order a trial of thatissue or grant judgment with a reference to determine the amount.

(4) Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grantjudgment accordingly.

(5) Where a party claims an accounting and the responding party fails to satisfy the Court that there is a preliminary issue to be tried, theCourt may grant judgment on the claim with a reference to take accounts. [2] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court described

summary trial rules as important tools to ensure timely,proportional, and cost-effective access to justice. The Supreme Court directed broad

interpretation of such rules in order to achieve thosepolicy goals. [3] In this jurisdiction, the application of Rule 17A was the subject of detailed consideration by Justice Green, as he then was, inMarco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)). As stated in paragraph 76 by Green, J., the following principles guide the application of the Rule: 1.

The object of Rule 17A is to promote the general objective of the Rules of Court of providing an expenditious and inexpensivedetermination of proceedings on their merits, by screening out claims that cannot survive the "good hard look". 2. The burden is on the applying party to satisfy the court that: (

a) there is no "genuine issue for trial" or, (

b) if there is a genuine issue, the record before the court enables the court to find the facts necessary to decide that issue and it wouldnot be unjust to the responding party to do so. 3. To bring himself or herself within the Rule the applying party must: (

a) in a case where he or she has the ultimate burden of proof on the merits, put forward an evidentiary basis for the claim which, ifconsidered alone, would prove each element of the cause of action; or (

b) in a case where the other party has the burden of proof on the merits, put forward an evidentiary base establishing a defence to theclaim as defined in the pleadings or tending to show that the other party's claim has no substance to it. 4. In either of the foregoing cases, the applying party's case must consist of an organized set of facts set out in a coherent way, eitherfrom primary sources or the best sources available, including admissions on interrogatories and discoveries, that constitute proof of aproper foundation of the claim or defence, as the case may be. 5.

In assessing whether the applying party's evidentiary basis is present, the court must take into consideration not only the affidavit andother documentary evidence presented on behalf of the applying party but also the results of any cross-examination, if allowed, of theapplying party's deponents. 6. The opportunity to avail of cross-examination is in the discretion of the court so as to ensure promotion of the philosophy of the rule ofproviding expeditious and inexpensive paper trials. Cross-examination would likely be appropriate where: (

a) there is some disputed issue disclosed on conflicting affidavits, the resolution of which is necessary to the ultimate outcome of thecase;

(

b) even though the applicant for cross-examination has not filed a conflicting affidavit, the purpose of cross-examination is to address information that is not within the knowledge of the cross-examiner's own deponents, provided the court can be convinced from other sources (eg. the pleadings), that there is a substantive point of difference between the parties; (

c) there is other good reason to test the veracity of a statement that is directly related to a material fact in dispute. Unlike cross-examination on a full trial, cross-examination on affidavits would not generally be permissible for the purpose of attacking credibility generally. If that is necessary, then that is probably a good indication that the case should go to trial. 7.

If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his or her position, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial. This cannot be accomplished by showing an issue raised by the pleadings. The argument on a Rule 17A application takes place at a level below the pleadings within the forums of evidence and legal argument.

The responding party must therefore "put his best foot forward" since failure to do so may lead the court to conclude that there is in fact no genuine issue for trial. The responding party should therefore set out in affidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court can see 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 determination on the merits. 8.

Where the issue is one of fact, the responding party may demonstrate the existence of a genuine issue by filing his or her own affidavit or other material or, where cross-examination of the applying party's deponents is allowed, it may be demonstrated from answers given on such cross-examination or, where the responding party's own deponents are cross-examined, from favourable answers thus elicited.

Where the issue is a legal one, the responding party would be expected to demonstrate the existence of the legal issue, by the citation of appropriate authority, in the memorandum of law which is required to be filed pursuant to Rule 17A.02(6) . 9. There will be a "genuine issue for trial" if the issue in question is not spurious and the issue relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties.

Obviously, there will not be a genuine issue for trial if the responding party can put forward no evidence that could constitute either a defence or a claim in law. 10. The court must approach the test for application of Rule 17A on an issue by issue basis. Just because it is determined that a particular issue must go to trial, it does not follow that the court cannot adjudicate summarily on other issues if the pre-conditions for the application of Rule 17A have been made out in respect of those other issues. 11. In presenting an evidentiary base in support of or in opposition to an application for

summary trial, both parties have an obligation not to "scoop-shovel", to use the phrase employed in the Inspiration Management case, disjointed affidavits and other material on the chambers judge, but must set out the evidence in a concise and organized way that demonstrates the issues in dispute and why they can or cannot be dealt with by way of

summary trial. Failure to do so may result (if the culprit is the applying party) in the Court concluding as a threshold matter, that the case is not appropriate for determination by way of

summary trial; or (if the culprit is the responding party), in the court concluding that no genuine issue for trial has been demonstrated. 12. If there is no genuine issue for trial, the court must give judgment in favour of the applying party. If the only genuine issue is a question of law the court may proceed to decide the issue and give judgment accordingly. 13. Where there is a genuine issue for trial, the court must then go on to consider whether, on the evidence as presented, it is nevertheless possible and appropriate to decide the issues on the application on the basis of the existing record.

At this point, the inquiry changes focus. The responding party had an obligation to put his or her best foot forward to demonstrate that there was a genuine issue for trial. Having done so, the focus shifts, to some extent, to a determination of the court's "comfort level" with the state of the record as being able to justify a determination on the genuine issues that have been identified. The court must be satisfied by the applying party that the evidentiary record is "sufficient for adjudication", to borrow the phrase used in the Inspiration Management case.

In making that determination the court must keep in mind that it is entitled, on a common sense basis, to draw inferences from the evidence and from failure of a party to comply with Rule 17A.02(4) and (5 ). It does not mean that the chambers judge must nevertheless be satisfied that if the proceeding went through the full trial process the result would inevitably be the same as would be given on

summary trial. It simply means that so long as the chambers judge is satisfied that there is a sufficient evidentiary backdrop against which findings of fact can be made and in which there are no material unanswered questions, he or she should be able to adjudicate on the merits.

14. A closed list of factors which the chambers judge must consider in determining this issue cannot be given. The list would obviously include: (

a) whether there are conflicts in the evidence which can be resolved by reference to other known facts and whether those facts are themselves proven on the record; (

b) whether there are issues of credibility which can be resolved without the necessity of observing the demeanor of the witnesses or of having more elaborate explanation of facts to which they have deposed; (

c) whether material evidence from a "principal player" is absent [this is particularly important where the absent evidence is from the applying party's side. It may be less significant where the evidence is absent from the responding party's case, in light of his general obligation to "put his best foot forward"]. In the end, this determination is a matter of discretion for the trial judge to determine whether he or she is confident that the court has the factual substratum necessary to make an informed decision on the merits. 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. 16. If the court is satisfied on the foregoing matters, then it should proceed to adjudicate on the merits of the claim and, in so doing, apply the same standards of adjudication and burden of proof as would apply on a full trial. 17.

Although one would expect that an applying party would not apply unless he or she clearly felt that there was considerable strength in the case, it is nevertheless possible that, if a court determines that it is appropriate to try the case summarily, the responding party could be successful in convincing the court that, on the record, judgment should be entered in his or her favour. Having set the machinery of Rule 17A in motion, the applying party will not then be able to complain if judgment goes against him or her. [ 4 ] The Plaintiff has the onus of putting forward an evidentiary basis for the claim, which,

if considered alone, would prove each element of the cause of action.

In this case, dealing with a construction contract for the provision of equipment, labour and materials to construct a sewer line, the Plaintiff has shown that there was an offer, an acceptance of the offer and performance. [ 5 ] The Plaintiff satisfied the threshold test for the application of the Rule by putting forward an evidentiary basis for its position. [ 6 ] The Statement of Defence filed by the Defendant denied that there was any contract with the Plaintiff and stated that the contract was with a third party – with the Plaintiff to act as a sub-sub-contractor.

There was no allegation that the Plaintiff did not provide the equipment or labour and materials to construct the sewer line. Neither was there any allegation in the Statement of Defence that the Plaintiff’s work was deficient or substandard in any manner. [ 7 ] The onus then shifted to the Defendant to demonstrate that there is a genuine issue for trial. It is incumbent upon the Defendant to put its “best foot forward” to show that there is a genuine issue for trial and that

summary judgment ought not to be granted. [ 8 ] In this case, it was incumbent upon the Defendant, to show, through cogent evidence, that there existed a relationship with a third party that could be characterized as one of a sub- contractor and that the Plaintiff occupied the position of sub-sub-contractor. [ 9 ] I allowed cross-examination of the deponents for both the Plaintiff and the Defendant in this matter so that their respective positions could be fleshed out.

Trent Burden, on behalf of the Defendant, had deposed that he had sent an Offer from the Plaintiff dated September 5, 2014 to Gaius Trimm of C & T Enterprises Ltd. with a view to having C & T Enterprises Ltd. act as the Defendant’s sub-contractor on the construction contract. In the accompanying message, Burden asked Trimm “Can this go through you?” [ 10 ] Burden testified that he had a telephone conversation with Gaius Trimm in which Trimm agreed to act as sub-contractor and supervise the Plaintiff’s work.

Burden was unable to point to a telephone record of that conversation from the Defendant’s telephone records. He then testified that the call must have been made from his personal cellphone – the records of which are not captured by the company’s telephone records. The matter was adjourned and Burden was directed to produce his personal cellphone records evidencing the contact with Gaius Trimm. [ 11 ] On the return date of the hearing, Burden produced his cellphone records, but was unable to point to any records on September 8, 2014 evidencing a telephone conversation with Gaius Trimm.

He acknowledged that he may have been mistaken that he spoke to Gaius Trimm on September 8, 2014. [ 12 ] I am allowed to make findings of credibility, although not determinations of general credibility ( Marco , principles 6 and 14(b). I am allowed to determine if a witness’ evidence regarding a particular fact or document is reliable, in the sense of being plausible, internally consistent, and consistent with proven facts and inferences from proven facts; but if I cannot decide the matter without making a determination whether a witness is generally believable or honest, then

summary trial is not appropriate. [ 13 ] Mr. Burden was adamant, in his viva voce testimony that a telephone discussion occurred with Gaius Trimm on September 10, 2014 – at which time Gaius Trimm agreed to act as the sub-contractor for the project in question. His inability to find the corroborating telephone records, which he was sure existed, undermines his credibility on the question of whether or not Gaius Trimm’s company was, in fact, retained as the sub-contractor on the project. [ 14 ] The evidence of Gaius Trimm was crucial to the Defendant’s defence.

In order to put its best foot forward, the Defendant should have had an affidavit from Gaius Trimm outlining his firm’s involvement in the construction contract. By not doing so, the evidentiary underpinning of the Defendant’s position has crumbled and I am left to decide whether or not to grant the Plaintiff the relief it seeks. [ 15 ] On the face of it, I have an offer to do work in two ways – each carrying its own price tag. I have the Defendant accepting that the work be done in the least costly manner in writing on September 10, 2014.

I have evidence from the Plaintiff that he did the work, invoiced it and was never paid. [ 16 ] It was incumbent upon the Defendant to show that the contract was between itself and a party other than the Plaintiff. It could have done so easily with an affidavit from the third party. It chose not to do so.

It is therefore, caught by lack of evidence on an issue that is material, if not critical, to its defense of the application. [ 17 ] Under the circumstances, I have no option but to grant to the Plaintiff the relief that it seeks, namely judgment in the amount of $38,496.77, together with pre-judgment interest thereon. [ 18 ] The Plaintiff shall have its costs throughout computed in accordance with Column 3 of

the Scale of Costs. _____________________________ Vikas Khaladkar Justice