Dew Point Insulation Systems Inc. v. JV Mechanical Ltd. et al., (2009) 259 O.A.C. 179 (DC)

• Judge: Bellamy, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: August 12, 2009
• Jurisdiction: Ontario
• Citations: (2009), 259 O.A.C. 179 (DC)

Dew Point Insulation v. JV Mechanical (2009), 259 O.A.C. 179 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.108

Dew Point Insulation Systems Incorporated (plaintiff/respondent) v. JV Mechanical Limited and John Vrbanic (defendants/appellants)

(184/08)

Indexed As: Dew Point Insulation Systems Inc. v. JV Mechanical Ltd. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Bellamy, J.

December 21, 2009.

Summary:

The plaintiff sued the individual and corporate defendants for $80,000 for breach of trust under the Construction Liens Act (Ont.). The plaintiff alleged that the corporate defendant owed it payment for its services on four construction projects. The defendants filed a statement of defence. The plaintiff applied to strike the statement of defence for alleged failure to comply with affidavit of document requirements.

A Master of the Ontario Superior Court, in a decision reported [2008] O.T.C. 687, allowed the application. The defendants appealed and moved for leave to introduce fresh evidence.

The Ontario Divisional Court, per Bellamy, J., granted leave to introduce fresh evidence and allowed the appeal.

Practice - Topic 1002

Parties - Parties unrepresented by counsel - Duty of court - The unrepresented defendants in an action under the Construction Liens Act (Ont.) failed to comply with a Master's order for the production of an affidavit of documents - The Master struck the statement of defence - The Ontario Divisional Court, per Bellamy, J., quashed the decision where the Master did not extend procedural fairness to the defendants - The defendants did not appear to appreciate the significance of court procedures - For example, the individual defendant did not have a supporting affidavit or keep or attach fax transmittal documents to pages he said he had faxed to the other side - The Master had not informed the defendants of the finality of the motion to strike - She did not provide them with an opportunity to make submissions - There was no evidence of prejudice to the plaintiff - The Master had removed, from two earlier draft orders, a less-drastic order suggested by the plaintiff that called for a further production order and for permission to proceed on the motion to strike if the defendants failed to comply - See paragraphs 26 to 40.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The unrepresented defendants in an action under the Construction Liens Act (Ont.) failed to comply with a Master's order for the production of an affidavit of documents - The Master struck the statement of defence - The defendants appealed - They instructed counsel who sent the plaintiff a supplementary affidavit of documents - The defendants, with new counsel again, moved for leave to introduce fresh evidence - The Ontario Divisional Court, per Bellamy, J., applying the test in R. v. Palmer (S.C.C.), granted leave to introduce fresh evidence and allowed the appeal - At no point did the defendants appear to be obstinately disobedient or demonstrating utter disregard for the Master's earlier orders, nor did they seem to be deliberately trying to obstruct the process or hide documents from the plaintiff - The defendants had no way, until the Master questioned the individual defendant at the hearing, of knowing that they had to provide evidence to the plaintiff or to the court of what they were doing to recover their losses from the project owners - The proposed fresh evidence dealt with a decisive issue and also demonstrated that the corporate defendant was a subcontractor to a general contractor in the subject construction projects - See paragraphs 10 to 23.

Cases Noticed:

Mendlowitz & Associates Inc. et al. v. Chiang et al. (2009), 257 O.A.C. 160; 93 O.R.(3d) 483 (C.A.), refd to. [para. 10].

Sengmueller v. Sengmueller (1994), 69 O.A.C. 312; 17 O.R.(3d) 208 (C.A.), consd. [para. 10].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, consd. [para. 10].

Monteiro v. Toronto-Dominion Bank, [2005] O.J. No. 4749 (Div. Ct.), refd to. [para. 13].

Oakwell Engineering Ltd. v. Enernorth Industries Inc. (2006), 215 O.A.C. 91; 82 O.R.(3d) 500 (C.A.), refd to. [para. 15].

Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership et al. (2008), 237 O.A.C. 91; 90 O.R.(3d) 561 (C.A.), refd to. [para. 15].

Country Style Food Services Inc. v. 1304271 Ontario Ltd., [2005] O.J. No. 2730 (C.A.), refd to. [para. 15].

Zesta Engineering Ltd. v. Cloutier et al. (2002), 164 O.A.C. 234 (C.A.), refd to. [para. 15].

Visagie et al. v. TVX Gold Inc. (2000), 132 O.A.C. 231; 49 O.R.(3d) 198 (C.A.), refd to. [para. 15].

Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), consd. [para. 24].

Shoppers Mortgage and Loan Corp. v. Health First Wellington Square Ltd. et al. (1995), 80 O.A.C. 346; 23 O.R.(3d) 362 (C.A.), refd to. [para. 25].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 25].

Ontario Provincial Police Commissioner v. MacDonald et al. (2009), 255 O.A.C. 376 (C.A.), consd. [para. 25].

Forestall et al. v. Toronto Police Services Board et al. (2007), 228 O.A.C. 202 (Div. Ct.), refd to. [para. 25].

Tran v. Financial Debt Recovery Ltd., [2001] O.J. No. 4103 (Div. Ct.), consd. [para. 27].

Cicciarella v. Cicciarella (2009), 252 O.A.C. 156 (Div. Ct.), consd. [para. 27].

Davids v. Davids (1999), 125 O.A.C. 375 (C.A.), refd to. [para. 28].

Breslin v. Breslin (2006), 223 O.A.C. 4 (Div. Ct.), consd. [para. 35].

Eloro Resources Ltd. v. Sovereign Capital Group (Ont) Ltd., [2004] O.T.C. Uned. 137 (Sup. Ct. Master), consd. [para. 36].

Counsel:

Lori Marzinotto, for the respondent;

Roy Wise, for the appellants.

This motion for leave to introduce fresh evidence and appeal were heard at Toronto, Ontario, on August 12, 2009, by Bellamy, J., of the Ontario Divisional Court, who delivered the following decision on December 21, 2009.