) ) I.C. IMPROVEMENTS INC. Plaintiff – v. –, 2013 ONSC 414

CITATION : I.C. Improvements v. Town of Oakville et al, 2013 ONSC 414 COURT FILE NO.: 4958/11 DATE: 2013-01-17 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) I.C. IMPROVEMENTS INC. Plaintiff – and – THE CORPORATION OF THE TOWN OF OAKVILLE and GATEMAN-MALLOY INC. Defendants ) ) ) ) ) ) ) ) ) Derek A. Schmuck, Counsel for the Plaintiff Jeremy A. Forrest, Counsel for the Defendant Gateman-Milloy ) ) ) HEARD: December 12, 2012 REASONS FOR JUDGMENT MURRAY J. [ 1 ] I.C. Improvements Inc. (hereinafter referred to as the “plaintiff “) brings a motion for

summary judgment against the defendant\plaintiff by counterclaim Gateman-Milloy Inc. (hereinafter referred to as the “defendant”) for all or part of amounts claimed and for an order that Gateman-Milloy Inc., as plaintiff by counterclaim post security for costs. The Plaintiff’s motion for

Summary Judgment [ 2 ] In its motion for

summary judgment, the plaintiff relies on the affidavit of Ivan Couto, the president of the plaintiff Corporation. In his affidavit, Mr. Couto states the following: 1. The sole asset of the plaintiff company is the money owed to it by the defendant; 2. It would be grossly unfair to force the plaintiff to pay monies into court in order for it to collect a significant sum owed by the defendant; 3. The plaintiff is owed $42,973.87 by the defendant for the St. David's project; 4. The plaintiff is owed $6,320.52 by the defendant for the RIM project; 5.

The plaintiff is owed $60,922.22 by the defendant for the Bronte Athletic Park project; 6. The plaintiff has sent the defendant an invoice for the installation of a logo, dated November 24, 2010; that the plaintiff is owed $439,483.65 on the Christ the King project; 7. There was only approximately $11,000 worth of work left to do by the plaintiff when the plaintiff left that project; 8. The defendant and its other subcontractors did not finish their preparatory work or pass the field over to the plaintiff on that project until September 30 th .

As of September 15 th , there were adjustments/charges to the layout of the field and so the plaintiff could not order its turf until September 16 th . The defendant agreed the plaintiff would start installing the turf on October 4 th ; 9. The plaintiff was working for the defendant on other projects in late September and early October. The weather started to get poor which made it impossible for the plaintiff to finish the Christ the King project any earlier; 10. The defendant insisted the plaintiff put forces on the RIM project rather than Christ the King; and 11.

The defendant and its new turf installer did not finish the project until the spring of 2011.

[3] The defendant filed an affidavit sworn by Mr. Peter Hersics, vice-president of finance for the defendant company. In hisaffidavit Mr. Hersics sets out a history of the litigation and the nature of the dispute as contained in the pleadings. Mr. Hersics deposesthat the plaintiff commenced this action pursuant to the Construction Lien Act in September of 2011, and further that in December of2011, the plaintiff commenced an action in Hamilton (court file number 11-31878).

According to the affidavit both actions arise out ofdisputes between the plaintiff and the defendant on a total of four construction projects in which the defendant acted as a generalcontractor and the plaintiff was a subcontractor. The plaintiff advance claims in the two actions in the combined amount of$725,066.90. The defendant has responded with counterclaims in both actions. On February 29, 2012, Madam Justice Miller orderedthat the two proceedings were to be consolidated and continued under the title of this proceeding. [4] Mr.

Hersics in his affidavit argues that it is evident from the statements of claim and the statement of defence andcounterclaims that the resolution of these proceedings will require the determination of a substantial number of issues of significantcomplexity. Analysis [5] In Combined Air Mechanical Services Inc. v. Flesch 108 O.R. (3d) 1, 2011 ONCA 764, at para. 56, the Court of Appealconfirmed that by adopting the full appreciation test, there is continued recognition of the established principles regarding the evidentiaryobligations on a

summary judgment motion. The Court of Appeal in Combined Air reiterated the applicability of the well-establishedprinciple articulated by Sharpe J. in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, that "[e]ach side must 'put its best foot forward' with respect to the existence ornon-existence of material issues to be tried." Further, at para. 63 of Combined Air, the Court of Appeal held the party who moves forsummary judgment must be in a position to present a case capable of being decided on the paper record before the Court. [6] In the case at bar, it is impossible for the Court to grant

summary judgment on the basis of the evidence filed by theplaintiff. It is incumbent on the plaintiff to set out all the facts which establish the cause of action and the right of the plaintiff to claimmonies owed. The plaintiff has not done so. As noted above, the evidence of the plaintiff is contained in one affidavit, that being theaffidavit of Mr. Couto. The factual information set out in Mr. Couto’s affidavit is merely conclusory and falls far short of what isrequired to warrant judgment in favour of the plaintiff.

The affidavit does not set out the contractual relationship between the plaintiffand the defendant, whether there was one contract or multiple contracts or the terms of such contract(s).

The affidavit does not providethe court with any evidence about what work was to be performed by the plaintiff pursuant to the contract(s), whether work wasperformed by the plaintiff, when such work was performed, whether the work was performed in accordance with the terms of thecontract, the dates of completion, the value of such work, and whether invoices have been provided by the plaintiff to the defendant andwhether the defendant has refused to pay for services performed in accordance with the contract. [7] The evidence of the plaintiff is that monies are owed by the defendant.

The plaintiff has not put its best foot forward. The plaintiff has not presented a case capable of being decided on the paper record before the court. The plaintiff is not entitled tosucceed on its motion. [8] Given the decision with respect to the merits of the plaintiff's motion for

summary judgment, I will not comment on thedeficiencies of the material filed by the defendant except to say that a bare recital of allegations contained in pleadings coupled withargument is not of assistance to the court in deciding a

summary judgment motion. See: Canada (Attorney General) v. Lameman, 2008SCC 14 , [2008] 1 S.C.R. 372 and Dawson v. Rexcraft Storage and Warehouse Inc., (ON CA), 164 D.L.R.(4th) 257 (OCA), 1061590 Ontario Ltd. v. Ontario Jockey Club (1995) (ON CA), 21 O.R. (3d) 547 (C.A.). It is well-established in the jurisprudence that parties cannot rely on mere allegations or the pleadings but must rely on proof.

The Plaintiff's Motion for an Order Requiring the Defendant/Plaintiff by Counterclaim to Post Security for Costs [9] There is no factual foundation established by the plaintiff warranting an order requiring the defendant/plaintiff bycounterclaim to post security for costs. Conclusion [10] The motions brought by the plaintiff are dismissed. Costs [11] The defendant is entitled to its costs. If the parties are unable to agree, I will entertain brief written submissions withrespect to both scale and quantum of costs. The defendant shall serve and file its submissions by no later than January 31, 2013.

Theplaintiff shall have responding submissions served and filed by February 14, 2013. MURRAY J. Released: January 17, 2013

CITATION : I.C. Improvements v. Town of Oakville et al, 2013 ONSC 414 COURT FILE NO.: 4958/11 DATE: 2013-01-17 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: I.C. IMPROVEMENTS INC. Plaintiff – and – THE CORPORATION OF THE TOWN OF OAKVILLE and GATEMAN-MALLOY INC. Defendants REASONS FOR JUDGMENT MURRAY J. Released: January 13, 2013