Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP

Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP

The motion judge erred by granting summary judgment because Queen raised a legitimate contributory fault defence that required credibility and expert determinations not resolvable on the record, and because granting summary judgment risked inconsistent findings with a related subrogated action; accordingly summary judgment was inappropriate and the motion was dismissed as against Queen with direction to pursue consolidation under r.6.01.

Citation
2024 ONCA 925
Parties
Plaintiff/moving Party (respondent): Arcamm Electrical Services Ltd.; Defendant/responding Party (appellant): Avison Young Real Estate Management Services LP; Defendant/responding Party (appellant): 4342 Queen St. Niagara Holdings Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 December 2024
Procedural Posture
Civil / Appeal From Summary Judgment
Outcome
Appeal allowed. Judgment set aside except para.5 dismissing claim against Avison. Summary judgment motion dismissed as against Queen. Queen ordered to bring r.6.01 motion within 45 days to seek trial together with the Subrogated Claim. Arcamm to pay Queen costs of the Motion and appeal; appeal costs fixed at $30,000.
Legal Topics
Summary Judgment, Contributory Fault, Apportionment of Damages in Contract, Risk of Inconsistent Findings, Consolidation Under R.6.01, Subrogation, Construction Lien, Prompt Payment Provision
Source Language
English
Contract Tort Insurance Civil Procedure Construction Law Summary Judgment Contributory Fault Apportionment of Damages in Contract +5 more

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Parties

Arcamm Electrical Services Ltd.

Plaintiff/moving Party (respondent)

Avison Young Real Estate Management Services LP

Defendant/responding Party (appellant)

4342 Queen St. Niagara Holdings Inc.

Defendant/responding Party (appellant)

Procedural Posture

Civil / Appeal From Summary Judgment

Legal Issues

  1. 1 Whether Arcamm's alleged contributory fault raises a genuine issue for trial
  2. 2 Whether the motion judge could fairly and justly decide Arcamm's entitlement to payment on summary judgment
  3. 3 Whether granting summary judgment risked inconsistent findings with a related subrogated action

Ratio Decidendi

The motion judge erred by granting summary judgment because Queen raised a legitimate contributory fault defence that required credibility and expert determinations not resolvable on the record, and because granting summary judgment risked inconsistent findings with a related subrogated action; accordingly summary judgment was inappropriate and the motion was dismissed as against Queen with direction to pursue consolidation under r.6.01.

Court Disposition

Appeal allowed. Judgment set aside except para.5 dismissing claim against Avison. Summary judgment motion dismissed as against Queen. Queen ordered to bring r.6.01 motion within 45 days to seek trial together with the Subrogated Claim. Arcamm to pay Queen costs of the Motion and appeal; appeal costs fixed at $30,000.

Orders

  • Allow the appeal
  • Set aside the judgment dated February 17, 2023 except paragraph 5