Legal Blog

Bullets

Lawyers have to tread a fine line on the evidence they adduce at trial. Evidence that deals with an issue on which a client’s case is extremely weak can waste time, cost money, and upset the judge. However, if no or too little evidence is adduced on a point in issue, consequences can be disastrous. An example of too little evidence is demonstrated in 4 Star Drywall Ltd. v. Nanak Homes Inc., a 2009 decision of the Ontario Superior Court of Justice.

Scenario

A sub commenced an action against a general for $434,000 still due on contract. The general agreed that it owed the sub the money, but claimed setoff for damages incurred because, it alleged, the sub did not complete the sub’s work on a timely basis. No doubt, many of our readers have experienced this scenario before, whether as a payor or a payee.

The sub brought a motion for summary judgment claiming there was no genuine issue for trial.

Consent

The sub had registered a claim for lien under the Construction Lien Act. It brought its action to enforce that claim for lien. No motion may be brought in a lien action without the court giving its consent to bring the motion. A court will not give its consent unless the motion will advance the litigation between the parties or will resolve significant issues in the action. The essence of this requirement is to curtail pre-trial motions, and their associated costs, unless some recognisable benefit for the action itself can be achieved.

The request for consent is not two-pronged; that is, there is no need first to bring a motion for consent and then a motion on the merits if successful on the consent motion. Rather, the mover simply brings one motion and the consent issue is dealt with at the same time as the motion on the merits.

In this case, the motions judge readily granted consent. A motion for judgment, if successful, would certainly advance the litigation. It is much more efficient to end the litigation quickly than to force an unnecessary trial.

Evidence

In a motion for summary judgment, the parties must put forward their best case. The court will not assume that a party has any better evidence than it sets out in the affidavit(s) in support of its position.

In this case, the general gave evidence on four main points. The judge’s comments are set out below each point.

1.   The general provided construction schedules to the sub once work started.

–    The affidavit did not go far enough. It did not actually state when the sub was to have completed the work.

–    The schedules did not demonstrate that the sub was to have completed its work on any particular date.

–    There was no indication that the sub agreed, explicitly or implicitly, to the schedules.

2.   The general gave the sub notice that it was not completing its work on a timely basis.

–    The contract called for notice if the general wished to claim that the sub was in breach of the sub’s obligations.

–    The notices that the general delivered were not delivered just to the sub; the general delivered them to a long list of subs.

–    In these notices, the general made no specific allegation of delay against the sub.

–    One alleged notice simply directed the sub to install drywall on the project. The letter did not mention delay, default, or a completion date.

3.   The general notified the sub that the general suffered damages due to the delay.   

–    So what. It was not sent during the currency of the contract. It was sent after the sub had fully completed its work and had demanded payment.

4.   The general actually incurred delay damages.

–    The affidavit did not specify when the sub was to have finished its work and how the sub caused the general’s damages.

–    The general calculated the damages, but made no attempt to allocate the liability among the various subs that the general blamed for the delay.

Upshot

The judge granted judgment in favour of the sub and dismissed the general’s counterclaim for delay.

The general’s defence and counterclaim, as submitted, seemingly had no substance. The real question is whether the evidence was bare because the general’s lawyer did not properly put forward the necessary evidence or because the entire defence was a sham. We suspect the latter.