SUMMARY JUDGMENT IN CONSTRUCTION CASES – HAS THE CULTURE SHIFTED?
A functioning summary judgment mechanism is crucial to the administration of justice. In the words of Justice Karakatsanis in the seminal Supreme Court of Canada decision in Hryniak v. Mauldin,1 full trials have become largely illusory because ordinary Canadians cannot afford to access the adjudication of civil disputes. The fundamental teaching of Hryniak is that access to justice is a judicial imperative which must shape and inform how courts interpret all manner of procedural rules. In the context of summary judgment, this means that summary procedures must be interpreted broadly, so as to reduce the cost and time involved in civil litigation.
Reduction in cost and time is particularly important in construction litigation, which is notoriously document intensive and time consuming. The disproportionate cost and time taken with construction cases puts a merits-based finding out of reach for most industry participants and this creates its own access to justice issue.
We have recently canvassed post-Hryniak construction law summary judgment cases to determine whether the courts’ approach has changed in light of the Supreme Court’s guidance. The full results of that inquiry were published in the 2018 issue of the Journal of the Canadian College of Construction Lawyers. In reviewing the case law, it became clear that only four issues were frequently and successfully put to the test of summary judgment: payment; limitations; statutory breach of trust; and discharge of liens. Even with enhanced judicial powers, many other construction cases seem to remain unsuitable for summary judgment.
Recent case law released after the publication of our paper strengthens this conclusion. Payment and limitation issues are being determined on a summary judgment basis.2 The same is true for breach of trust issues.3 However, summary judgment motions in complex construction cases continue to be met with reluctance, even in cases falling into the categories we identified as being amenable to such motions. In Clearway Construction Inc. v. The City of Toronto,4 for example, a summary judgment motion brought on the basis of failure to meet notice requirements and limitation periods was dismissed. The court found that the record before it on the summary judgment motion was inadequate to make findings necessary to resolve the issues of discoverability and an alleged pattern of conduct on the part of the owner of tolerating departure from the contractual notice provisions. A trial was required.
SUMMARY JUDGMENT REFORMS IN ONTARIO CULMINATE IN HRYNIAK
The Ontario summary judgment rules were amended in 2010, following the recommendations of the Osborne Report,5 to reform summary judgment into a legitimate alternative means for adjudicating and resolving legal disputes.6 The prior wording of Rule 20, whether there was a “genuine issue for trial”, was replaced by “genuine issue requiring a trial”. As the Ontario Court of Appeal pointed out in Combined Air Mechanical Services Inc. v. Flesch,7 this change in language was more than semantics: while the prior wording served mainly to winnow out plainly unmeritorious litigation, the amended wording, coupled with the enhanced powers under rules 20.04(2.1) and (2.2), now permitted the motion judge to dispose of cases on the merits where the trial process was not required in the “interest of justice”.
The Osborne Report concluded that few summary judgment motions were being brought and, if the summary judgment rule was to work as intended, the appellate jurisprudence that had narrowed the scope and utility of the rule had to be reversed. It recommended that summary judgment be made more widely available, that judges be given the power to weigh evidence on summary judgment motions, and that judges be given discretion to direct that oral evidence be presented.8 In following some of the Report’s recommendations, the Legislature adopted the following rule in 2010:
2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defense; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause
(2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue 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 grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.
(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts.
As noted by Justice Karakatsanis in Hryniak, that wording represented a significant change in the court’s power:
43 The Ontario amendments changed the test for summary judgment from asking whether the case presents “a genuine issue for trial” to asking whether there is a “genuine issue requiring a trial”. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. Further, it eliminated the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment, in order to avoid deterring the use of the procedure.
44 The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.
45 These new fact-finding powers are discretionary and are presumptively available; they may be exercised unless it is in the interest of justice for them to be exercised only at a trial; Rule 20.04(2.1). Thus, the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.
Therefore, on a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. If the summary judgment process provides the evidence required to fairly and justly adjudicated the dispute and is a timely, affordable and proportionate procedure, there is no genuine issue requiring a trial. If, after that enquiry, there is a genuine issue requiring a trial, the court should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The use of those powers is discretionary, provided that their use is not against the interest of justice, which it will not be if it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.9 These powers may be employed unless it is in the “interest of justice” for them to be exercised only at trial. The “interest of justice” is not defined in the Rules. On the latter point, Karakatsanis J. offered the following clarification:
59 In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”. It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
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.
What can be seen, then, is that the Supreme Court of Canada has articulated a new approach to summary judgment by mandating that summary judgment rules must be interpreted broadly, and thus expanding the use of summary judgment as an alternative model for adjudication that should be more widely available to provide litigants with less expensive and more timely access to justice.10
In our original paper, we identified 131 summary judgment motions in Canadian construction cases between 2014 and 2017. Courts granted summary judgment in 62 of those cases (47%), partial summary judgment in 17 cases (13%), and denied summary judgment in 49 cases (37%). As noted earlier, a brief review of case law released subsequent to our original paper seems to confirm the trends identified there.
Claims for payment pursuant to the terms of a settlement agreement seem to lend themselves to summary judgment,11 as do claims for payment against a defaulting mortgagor12 and claims for repayment of construction loans.13 Where a contract stipulated that amounts invoiced were immediately due and payable, subject to later audits, judgment was granted on the amounts as invoiced. The Alberta Court of Appeal affirmed a summary judgment which had dismissed the defence that the plaintiff was not entitled to withhold payment pending completion of the audit in SemCAMS ULC v. Blaze Energy Ltd.14
Not surprisingly, summary judgement will likely also be granted to the extent an amount claimed for extras is admitted to be owing by the defendant.15 Similarly, judgment will be granted where a claim for payment on the contract and extras is fully proven and supported by invoices that were not disputed,16 or in light of uncontradicted documentary evidence that work was performed on a property and not paid for.17
To the contrary, the court in 1904601 Ontario Ltd. v. 58 Cardill Inc.18 provided a number of examples of payment issues that, based on conflicting evidence, could not be determined by way of summary judgment:
In my view, in the present case, there are many factual issues requiring a trial for resolution. Whether the parties amended the contract to relieve compliance with Part 6 with respect to extras to the Contract is one such issue. The timing of the submission of the invoices for the bulk of the extras is an issue which, in my view, requires viva voce evidence to resolve. Both parties retained experts and both parties submit that the opinions of their expert should be preferred to the opinions of the other side’s expert. This is an issue which cannot be decided on a motion for summary judgment.
Similarly, judgment was granted on a claim for extras where the evidence was clear that the extras were authorized by the owner, but not on those portions of the claim for which no evidence was adduced to show why the work would have been extra.19
Summary judgment has also been granted defensively with regard to payment issues where it is clear that there is no entitlement to payment. Where a contract prohibits extra work without written permission and such permission is not given, a defendant successfully moved for summary judgment in Jessco Structural Ltd. v. Gottardo Construction Ltd.20
We conclude that cases revolving around pure payment issues are ideally suited for summary judgment. This is reflected in our research; 24 out of 26 motions for summary judgment were granted in the reported cases we reviewed across Canada.
Another area of law which seems to lend itself to determination by way of summary judgment is limitation of actions. In Guarantee Co. of North America v. Gordon Capital Corp.,21 a case which arose from a claim on a fidelity bond that provided coverage for dishonest and fraudulent acts of employees, the Supreme Court of Canada determined that a limitation issue can be determined by way of summary judgment.
Where a defendant denies payment on an invoice, for example, and the plaintiff commences an action almost 4 years later in respect of such payment, the claim will obviously be out of time and summary judgment will be granted absent some evidence of a tolling agreement.22 Similarly, where the evidence is clear that an owner is aware of problems with the construction, but does not commence an action within the two years stipulated by the Limitations Act, 2002, the claim will be barred.23
However, the determination of when a plaintiff knew or ought to have known of a claim will often require extensive weighing of evidence, so that resorting to the fact-finding powers would make no appreciable difference in the resources or length of time that it would take to resolve this matter, thus doing away with the purpose of a summary judgment motion.24
In Walsh Construction/Bondfield Partnership v. Chartis Insurance Company of Canada,25 a case involving a surety, a contractor engaged a subcontractor to work on a hospital reconstruction project. The subcontractor obtained a performance bond. The contractor provided the subcontractor with formal notice of default on July 31, 2012, and advised the surety of its intended claim the very next day. The surety investigated and concluded that the subcontractor was not in default. The contractor commenced an action against the surety on April 22, 2015, for payment under performance bond. The surety brought a motion for summary judgment dismissing action as statute-barred. The motion was dismissed for the following reasons:
28 The court must make findings of fact about whether WB’s allegations of default by Yuanda in the various notices of default can be proven as actual defaults. Yuanda and WB engaged in meetings and the evidence suggests that Yuanda’s performance improved. The date on which Yuanda was in fact in actual default, if it was in default at all, raises a genuine issue that must be decided before the limitations issue can be decided.
As with all summary judgment motions, the affidavit evidence should be reasonably clear. Where the affidavit evidence is sufficiently clear and complete and is unlikely to be improved at trial, courts will use their expanded powers and grant summary judgment, as can be seen in Heerkens v. Lindsay Agricultural Society:26
22 I find that whether the action is statute-barred by reason of the expiration of the applicable limitation period is a genuine issue that requires a trial. However, I find that a trial of that issue can be avoided by the exercise of the expanded fact-finding powers available pursuant to Rule 20.
23 I choose to exercise my discretion and apply the expanded fact-finding powers to determine the limitation period issue. I do so for the following reasons.
24 In determining the limitation period issue, the only expanded fact-finding power that I have applied is the ability to draw an inference. The inferences I am required to draw are few in number and are based exclusively on Heerkens’ evidence. His evidence is presented by way of affidavit and as available from the transcripts of his examination for discovery and cross-examination on his affidavit. The Record includes extensive evidence upon which there would be little, if any, improvement at trial.
The issue of limitations is not always clear cut. Discoverability of a claim is the sort of issue that involves conflicting evidence, and despite enhanced fact finding powers on a motion will nonetheless often require a trial. This is borne out by our research: of the summary judgment cases reviewed, the majority of those based on limitations arguments still proceeded to trial.
CLAIMS FOR BREACH OF STATUTORY TRUST
Claims for breach of trust under the trust provisions of the Construction Lien Act (now Construction Act) have proven to be susceptible to summary determination. That makes sense, because the elements necessary to prove a breach of the contractor’s trust, for example, are straightforward. They were summarized in Sunview Doors Ltd. v. Academy Doors & Windows Ltd.27 as follows:
- The claimed trustee was a contractor or subcontractor.
- The claimed beneficiary of the trust supplied materials to the projects on which the trustee was a contractor or subcontractor.
- The trustee received or was owed monies on account of its contract price for those projects.
- The trustee owed the beneficiary for those materials.
These elements are easily established in or can be inferred from affidavit evidence, as was done in 620369 Ontario Inc. v. Alumpro Building Products Plus Inc.28
The clear statutory regime establishing the trust and the equally clear case law establishing the corresponding burden of proof have proven to make breach of trust claims one of the few areas in which motions for summary judgment have largely been successful. It is submitted that the forthcoming changes to the Act, which will mandate the manner in which trust funds must be maintained by a contractor,29 will make such cases even more amenable to summary judgments.
MOTIONS UNDER S. 47 OF THE CONSTRUCTION LIEN ACT
Section 47 of the Ontario Construction Lien Act (now Construction Act) provides that the court may discharge a construction lien on any proper ground:
Upon motion, the court may,
(a) order the discharge of a lien;
(b) order that the registration of,
(i) a claim for lien, or
(ii) a certificate of action, or both, be vacated;
(c) declare, where written notice of a lien has been given, that the lien has expired, or that the written notice of the lien shall no longer bind the person to whom it was given; or
(d) dismiss an action, upon any proper ground and subject to any terms and conditions that the court considers appropriate in the circumstances
Since it is well settled law that a motion brought pursuant to s. 47 of the Act is akin to a motion for summary judgment,30 s. 47 cases decided since Hryniak are usefully discussed in this context as well.
Some early post-Hryniak decisions were reluctant to fully endorse the decision in a s. 47 context. In G.C. Rentals & Enterprises Ltd. v. Advanced Precast Inc.,31 the court held as follows:
24 The question of whether, on a motion under s. 47 of the Construction Lien Act, the court by analogy may use the new discretionary powers under rules 20.04(2.1) and (2.2) given to a judge hearing a summary judgment motion was not addressed on the motion before me, other than by observation that there have been no reported cases under s. 47 since the release of Hryrniak. Although the case law prior to Hryrniak indicates that a s. 47 motion is analogous to a motion for summary judgment, I am not prepared, without submissions on the issue, to assume that on a s. 47 motion under the Construction Lien Act the court has the new, expanded powers expressly given to a summary judgment motions judge under rules 20.04(2.1) and (2.2), to weigh the evidence, evaluate credibility of a deponent, draw any reasonable inference from the evidence and order that oral evidence be presented by one or more parties. To exercise those powers would go well beyond what the case law to date has indicated should be the procedure on a s. 47 motion.
Similarly, in Northridge Homes Ltd. v. Travellers Motel (Owen Sound) Ltd.,32 the court held that:
13 All counsel agree that the Motion brought by the Motel and the Grewals to discharge the liens is akin to a motion for summary judgment (albeit under the old regime, before Rule 20 of the Rules of Civil Procedure was amended to provide expanded powers and pre-Hryniak v. Mauldin, 2014 SCC 7 [S.C.C.]).
14 I agree.
In a contemporaneous decision, a master had no compunctions about applying Hryniak on a s. 47 motion. In Govan Brown & Associates Ltd. v. Equinox 199 Bay Street Co.,33 the master held that:
As determined in Combined Air Mechanical Services Inc. v. Flesch, the court on a motion such as this is entitled to weigh evidence, evaluate credibility, and draw reasonable inferences in order to make all necessary findings of fact and apply the law to the facts.
A year later, in Butko v. Ratayeva,34 the master again relied on Hryniak in discharging the claimant’s lien.
On another motion to discharge a number of liens, a 2017 decision held that “the Supreme Court of Canada directed judges hearing motions like this to take a proactive approach and assess whether the new, enhanced forensic tools of summary judgment can be applied to determine the case at this stage or in a summary trial”.35
The question we have attempted to answer in our original paper, or at least shed light onto, is to what extent the 2010 changes to the Rules of Civil Procedure and the Supreme Court of Canada decision in Hryniak could reasonably be expected to shift the culture in document-intensive, multiple-party and issue construction cases. We conclude that for these cases the Rule changes and Hryniak are not a complete answer to the problems surrounding access to justice and excessive costs of litigation raised a decade ago in the Osborne Report. Nevertheless, there are a few types of construction disputes that seem to be particularly well suited to summary determination.
The Osborne Report concluded that it was, to a great extent, appellate jurisprudence that had narrowed the scope and utility of the rule. That appears to have changed, with the majority of appeals from successful summary judgment motions in the period we surveyed being dismissed. Having said that, the Ontario Court of Appeal, in Butera v. Chown, Cairns LLP,36 made clear that the pre-Hryniak caution against partial summary judgment equally applies in the post-Hryniak world and that, in fact, partial summary judgment raises problems that are anathema to the stated objectives underlying Hryniak. That decision is already being followed in lower courts denying partial summary judgment.
- 2014 SCC 7.
- T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665.
- See, for example, Outland Camps Inc. v. M&L General Contracting Ltd., 2018 MBQB 112.
- 2018 ONSC 1736.
- Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings and Recommendations (2007), https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/
- Hryniak, para. 36.
- 2011 ONCA 764.
- Cited from Hryniak, para. 39.
- Hryniak, para 66.
- Eisen v. Betowski, 2017 ONSC 6433.
- Allan Windows Technologies Ltd. v. 6877869 Canada Ltd., 2015 NBQB 100 (Q.B.).
- Tribecca Finance Corp. v. Tabrizi, 2015 ONCA 748. See also Tanfi Ltd. v. Slade, 2015 ONSC 778 (S.C.J.)
- Kramer’s Technical Services Inc. v. Eco-Industrial Business Park Inc., 2015 ABQB 59 (Q.B.).
- 2016 ABCA 113.
- 1904601 Ontario Ltd. v. 58 Cardill Inc., 2016 ONSC 7040 (S.C.J.).
- A.C. Concrete Forming Ltd. v. Time Development Construction Inc., 2015 ONSC 7617 (S.C.J.); Stanley Paulus Architect Inc. v. Windhill Holdings Ltd., 2014 BCSC 1816 (S.C.).
- Royal Oak Railing & Stair Ltd. v. MyHaven Homes Ltd., 2015 ONSC 7565 (S.C.J.).
- 2016 ONSC 7040 (S.C.J.).
- S & K Restoration Inc. v. 1389978 Alberta Ltd., 2015 ABQB 73 (Master).
- 2015 ONSC 3637 (S.C.J.).
-  3 S.C.R. 423.
- Four Seasons Site Development v. Toronto (City), 2015 ONSC 6891.
- Zeppa v. Woodbridge Heating & Air Conditioning Ltd., 2017 ONSC 5847 (S.C.J.).
- Séguin Racine Architectes et Associés Inc. v. C.H. Clement Construction, 2015 ONSC 6833 (S.C.J.).
- 2017 ONSC 3985 (Master).
- 2017 ONSC 240 (S.C.J.).
- 2010 ONCA 198.
- 2014 ONSC 274 (S.C.J.).
- Construction Act, s. 8.1. This section is not in force at the time of writing. The Attorney General has announced that this section, along with the other “modernization” sections, will come into force on July 1, 2018. The amendments related to prompt payment, adjudication and liens against municipalities will come into force on October 1, 2019. The revisions will not have retroactive effect; the new regime will not apply to contracts entered into before the changes come into force. For the detailed transition rules, see s. 87.3 of the Act.
- Diamond Drywall Contracting Inc. v. Ikram, 2016 ONSC 5411 (Master); Beaver Materials Handling Co. v. Hejna, 2005 CarswellOnt 2803 (S.C.J.); Dominion Bridge Inc. v. Noell Stahl-Und Maschinenbau GmbH, 1999 CarswellOnt 5067 (S.C.J.).
- 2014 ONSC 4237 (S.C.J.).
- 2015 ONSC 3743 (S.C.J.).
- 2014 ONSC 3924 (Master).
- 2015 ONSC 1102 (Master).
- Filippi v. 315 Pembroke St East, 2017 ONSC 3851 (S.C.J.).
- 2017 ONCA 783.