Motion for summary judgment by plaintiff electrical subcontractor who had done work on two projects for defendant contractor for amounts due and owing on construction project and motion for leave under s. 67(1) of Construction Lien Act (Ont.), to bring an interlocutory motion. Defendant refused to pay balance under contract because they were setting off balance of earlier contract which had preceeded project. Motions granted. No trial necessary to determine issue of liability on contract or amount of claim. Evidence on two projects entirely different and distinct from one another. Relationship between parties did not suggest they had practice or understanding there was a running account between them with respect to different projects. Set-off claim not much more than bald assertion that plaintiff breached its contractual obligations and that defendant had incurred damages arising from engagement of new electrical subcontractor. Defendant cannot rely on baldly asserted claim to defeat motion for summary judgment. Defendant responding to motion for summary judgment with set-off claim bears onus to put its best foot forward with respect to that claim. Unjust to deny relief where defendant had led no evidence that parties had past commercial relationship that treated their obligations as a running account, where defendant had declined to put its best foot forward and where plaintiff’s case conceded.
Total Electrical Systems Inc. v. College Boreal D’Arts Appliques et de Tecnologies
(July 29, 2011, Ont. S.C.J., Hennessy J., File No. C-832/10) 205 A.C.W.S. (3d) 894 (12 pp.).