Venasse (D.J.) Construction Ltd. v. MVD Properties Inc. et al., (2009) 252 O.A.C. 173 (DC)

• Judge: J. Wilson, Lederman and Karakatsanis, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 27, 2009
• Jurisdiction: Ontario
• Citations: (2009), 252 O.A.C. 173 (DC)

Venasse Constr. Ltd. v. MVD Prop. Inc. (2009), 252 O.A.C. 173 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JL.017

D.J. Venasse Construction Limited (plaintiff/respondent in appeal) v. MVD Properties Inc. and Firstontario Credit Union Limited (defendants/appellant)

(DC-09-000055-00)

Indexed As: Venasse (D.J.) Construction Ltd. v. MVD Properties Inc. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Lederman and Karakatsanis, JJ.

June 16, 2009.

Summary:

In a construction lien action, the motions judge granted the plaintiff contractor summary judgment in the amount of $1,199,122.50. However, he stayed payment of $200,000 for a period of three years, and found that there was a genuine issue for trial respecting the deficiencies in construction alleged by the defendant owner (MVD) in the counterclaim, which could proceed to trial. MVD appealed.

The Ontario Divisional Court allowed the appeal and dismissed the motion for summary judgment, without prejudice to the plaintiff to bring a further motion for summary judgment to clarify the scope of the genuine issue for trial related to the deficiencies.

Arbitration - Topic 5

General principles - Arbitration v. action - In a construction lien action, the motions judge granted the plaintiff contractor summary judgment in the amount of $1,199,122.50 - However, he stayed payment of $200,000 for a period of three years, and found that there was a genuine issue for trial respecting the deficiencies in construction alleged by the defendant owner (MVD) in the counterclaim, which could proceed to trial - In the course of arguing for an adjournment of the summary judgment motion, MVD had submitted that a stay of the action should be granted and the matter referred to arbitration - The Ontario Divisional Court noted that MVD first raised a request for arbitration in its pleading - The motions judge concluded that there should be no stay of the proceeding in light of the request for arbitration - MVD failed to seek arbitration within a reasonable time, and failed to abide by the notice provisions in the parties' contract - Most importantly, to invoke arbitration, the entire balance owing had to be paid - This prerequisite for arbitration obviously had not been met - There was no merit to MVD's suggestion that the motions judge erred by failing to stay the proceedings - See paragraphs 22 to 24.

Arbitration - Topic 2507

Stay of proceedings - When available - [See Arbitration - Topic 5 ].

Arbitration - Topic 2517

Stay of proceedings - Bar to stay - Loss of right to arbitrate - [See Arbitration - Topic 5 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - In a construction lien action, the motions judge granted the plaintiff contractor summary judgment in the amount of $1,199,122.50 - However, he stayed payment of $200,000 for a period of three years, and found that there was a genuine issue for trial respecting the deficiencies in construction alleged by the defendant owner (MVD) in the counterclaim, which could proceed to trial - MVD appealed - The Ontario Divisional Court allowed the appeal and dismissed the motion for summary judgment, without prejudice to the plaintiff to bring a further motion for summary judgment to clarify the scope of the genuine issue for trial related to the deficiencies - The motions judge erred in finding that MVD made an unequivocal admission of liability of the debt owing in the agreement as MVD retained its right to file a defence that would include the right to assert the defence of equitable set-off in case of default - In addition, the plaintiff did not dispute the calculation of the amount owing for fees before set-off for the amount of deficiencies - Even if the defence of equitable set-off was available, the motions judge did not consider whether to grant partial summary judgment - While he found that there was a genuine issue for trial with respect to the deficiencies, he did not engage in any analysis of whether there was a genuine issue for trial for the full amount of the fees based upon equitable set-off arising from the evidence of deficiencies filed before him - While he suggested that the sum of $200,000 was a generous amount to address the counterclaim of deficiencies, as part of the stay of the enforcement of his order for judgment, he did not provide any basis for the calculation of this amount - The motions judge did not review the extent of the genuine issue for trial based upon the various allegations of deficiencies advanced - See paragraphs 25 to 39.

Practice - Topic 5706

Judgments and orders - Summary judgments - Counterclaim or set-off - [See Practice - Topic 5702 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The Ontario Divisional Court concluded that the test for reviewing the decision of a motions judge on a summary judgment motion determining whether there was a genuine issue for trial was the standard of correctness - See paragraphs 3 to 6.

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See second Practice - Topic 5708 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 3].

Esses v. Friedberg & Co. et al. (2008), 241 O.A.C. 134; 2008 ONCA 646, leave to appeal denied (2009), 395 N.R. 393 (S.C.C.), refd to. [para. 4].

F.B. v. Catholic Children's Aid Society of Toronto et al., [2001] O.T.C. 293; 199 D.L.R.(4th) 554 (Sup. Ct.), refd to. [para. 5].

F.B. v. S.G. - see F.B. v. Catholic Children's Aid Society of Toronto et al.

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385; 41 D.L.R.(4th) 385, refd to. [para. 35].

Counsel:

William Friedman & Wayne Novak, for the defendants/appellant, MVD Properties;

Ronald G. Slaght, Q.C., for the plaintiff/respondent in appeal, D.J. Venasse Construction Ltd.

This appeal was heard at Toronto, Ontario, on April 27, 2009, by J. Wilson, Lederman and Karakatsanis, JJ., of the Ontario Divisional Court, who delivered the following decision on June 16, 2009.