2005 BCSC 152 On-Side Restorations et al v. Strata Plan NW 1815

Before: The Honourable Madam Justice Fisher

Reasons for Judgment

Counsel for Plaintiffs	Marco D. Carnello
Counsel for Defendant	Gilbert Laroque
Date and Place of Trial/Hearing:	January 10, 2005
	New Westminster, B.C.

[1] This is an application by the plaintiffs for judgment under Rule 18A. The amount claimed is $291,621.76 plus interest and costs. The defendant opposes the application on the basis that this action is not suitable for summary trial.

Background

[2] The defendant, The Owners, Strata Plan NW 1815, own a condominium complex located at 20454-53^rd Avenue, Langley, British Columbia, known as “River’s Edge”. In July 2001, River’s Edge was damaged in a fire. Subsequently, the defendant retained the plaintiffs to provide restoration and repair services. The plaintiffs’ claims are for payment of outstanding invoices, which the plaintiffs issued to the defendant after they supplied materials, labour and related services. The plaintiff, Highland Contracting and Services Ltd. (“Highland”), is a subsidiary of the plaintiff On-Side Restoration Services Ltd. (“On-Side”). All of the work was substantially completed in early 2003; the City of Langley issued an occupancy permit on February 24, 2003.

[3] This summary trial was first set for hearing on December 31, 2003, for a total claim of $1,172,431.35. Although an application by the defendant to adjourn the application was dismissed, the plaintiffs subsequently agreed to adjourn it when the defendant filed a Proof of Loss with its insurers, directing payment of $700,080.71 to the plaintiffs. As a result of this, the plaintiff On-Side was paid in full, with the exception of interest and costs. The plaintiffs say that the amount of $291,621.76 is still owing to the plaintiff Highland; this amount was to be paid by the defendant directly, as the insurers had paid out funds to the limit of the defendant’s policies.

[4] In its statement of defence in this action, the defendant admits that it entered into contracts with the plaintiffs whereby the plaintiffs agreed to provide restoration and repair services in relation to River’s Edge and the defendant agreed to pay the plaintiffs for the work in accordance with the terms of the contracts. The defendant denies that the plaintiffs provided materials, labour and related services and completed the work in accordance with the terms of the contracts. The particulars provided by the defendant relate to allegations of defective materials, other deficiencies and a failure to complete the work by dates specified in the contracts. The defendant claims a right of set-off for damages allegedly caused by the plaintiff’s breach of contract and negligence arising from the deficiencies.

[5] The defendant has not made a counterclaim in this action. However, in July 2004, the defendant filed a writ of summons against a number of parties, including On-Side and Highland, the defendant’s insurers and others. In that action, claims for deficiencies are made against On-Side and Highland.

[6] This action has been set for a five-day trial commencing September 12, 2005.

Issues

[7] The defendant submits that the matter is not suitable for disposition by way of summary trial because

a) there is insufficient evidence before the court regarding the terms of the contracts between the plaintiffs and the defendant and the quantification of the claims, mainly by the plaintiff On-Side; and

b) it would be unjust to decide the issues on the application because the plaintiff On-Side has not produced documents, the matter is complex and requires expert evidence and it cannot prepare expert evidence without the documents of On-Side.

[8] A further issue is whether the court may grant judgment in circumstances where the defendant has claimed a set-off, but has not filed a counterclaim.

Narrative and Findings of Fact

[9] Morrison Hershfield Limited (“Morrison Hershfield”) was the defendant’s engineering consultant who designed and oversaw the work carried out by the plaintiff Highland. In support of its claim, Highland provided copies of a work authorization, invoices, and certificates of payment issued by Morrison Hershfield. Highland also provided an accounting showing a breakdown of all invoice amounts and payments received.

[10] The plaintiff On-Side, having been paid in full, has no claim against the defendant with the exception of a claim for interest owing on late payments, and costs. On-Side provided copies of work authorizations, invoices and reviews conducted by Barclay Restorations Ltd., a company retained by the defendant to review On-Side’s invoices, as well as an accounting showing a breakdown of all invoice amounts and payments received.

The Highland Contract

[11] The defendant retained Highland to repair the building envelope after rot was discovered following the fire. The contract consists of a Work Authorization dated July 1, 2002, signed by the chair, vice-chair and secretary of the defendant, which authorized Highland to repair the building envelope “on a time and material basis as per the attached Rate Schedule”. No “Rate Schedule” is attached to the Work Authorization. However, each invoice submitted by Highland referenced an attached “Schedule of Values”. There is in evidence a Schedule of Values that shows labour and material costs for work done on River’s Edge.

[12] Hand-written on the bottom of the Work Authorization is the following:

*upon review and acceptance by John Dalgleish.

*subject only to lack of insurance dollars. (ie. we pay the difference)

[“estimated dollars” is written between this line and the next]

*limited to the scope of work detailed on the work estimate.

*anything above budget proposal must be approved by the strata council.

[13] John Dalgleish was the insurance adjuster retained by the defendant’s insurers. Certain of the repairs to River’s Edge had limitations on coverage.

[14] Morrison Hershfield produced a document dated July 17, 2002 entitled “Construction Set: Specifications for Building Envelope Rehabilitation River’s Edge”.

[15] Counsel for the plaintiffs advised that the parties did not know the scope of work as of July 1, 2002, and that the contract was carried out by Highland providing materials and labour, invoicing the defendant, through Morrison Hershfield, for the work done to date, and having Morrison Hershfield review the invoice, the work and issuing a certificate of payment for work it approved. Highland issued seven invoices between September 2002 and April 2003 for a total amount of $704,296.42, of which $412,674.66 was paid by the defendant’s insurers at various times from February 2003 to June 2004, leaving a principal balance owing of $291,621.76.

[16] Between October 2002 and August 2003, Morrison Hershfield issued nine certificates of payment in respect of Highland’s invoices. The total amount approved by Morrison Hershfield was $704,296.09.

[17] Each certificate of payment includes the following statement in small print at the bottom of the page:

This certificate is not negotiable and is payable to the payee named in it; issuance, payment and acceptance are without prejudice to any rights of the Owner or Contractor under their Contract.

[18] Highland says that the defendant retained Morrison Hershfield to oversee all of its work and that once Morrison Hershfield issued a certificate of payment, the defendant was required to pay for the work. Highland’s counsel relies on a decision of this court in Gauvin Construction Ltd. v. Soco Investment Inc., [1991] B.C.J. No. 2335, 47 C.L.R. 174 (S.C.), where the court referred to certificates of payment as documents that “certify an amount due by the owner to the contractor”. In that case, there was a written contract that specified that the amounts of the required monthly payments by the owner were to be certified by the consultant, and that the consultant was to issue a certificate of payment “in the amount applied for or in such other amount as he determines to be properly due”.

[19] In this case, while there is no written contract specifying such provisions, there is substantial evidence that the parties acted in a similar manner. Clearly, Highland submitted its invoices to Morrison Hershfield, who reviewed them and subsequently issued certificates of payment. Morrison Hershfield approved all of the amounts of the invoices submitted by Highland. A substantial number of those invoices were paid in February and May 2003 and from February to June 2004. When the insurance proceeds reached the insurance limits, payments stopped. As of June 25, 2004, On-Side had been paid in full and $291,621.76 remained due and owing to Highland.

[20] On October 28, 2003, the defendant held a Special General Meeting, where the following motion was carried:

Be it resolved as a ¾ Vote Resolution of the Owners, Strata Plan NW 1815, that a one-time levy in the amount of $291,621.76 based on unit entitlement, that is due on passage and payable on or before November 15, 2003, be raised to fund the balance of the shortfall in repair costs that was not funded by the insurance claim.

[21] This special resolution of the owners is consistent with one of the provisions that was added to Highland’s Work Authorization, that “anything above budget proposal must be approved by the strata council”.

The Terms

[22] The defendant says that the essential terms of the contract between Highland and the defendant are not in evidence, and that the Work Authorization is only one component of the contract. Counsel submitted that the “work estimate”, “budget proposal” and “rate schedule”, each referred to in the Work Authorization, are not in evidence in this application, and without this evidence, the court cannot determine the contract between the parties.

[23] While the written terms of the contract between Highland and the defendant are not set out clearly in one document, based upon the detailed invoices and the certificates of payment issued by Morrison Hershfield, I have concluded that the court can determine the essential terms of the contract between these parties. Those essential terms are that Highland was to repair the building envelope on a time and materials basis, the scope of work was determined by the defendant’s consultant Morrison Hershfield, Highland was to submit its invoices to Morrison Hershfield for approval and once approved, the defendant was required to pay Highland. Interest would be due at the rate of 2% after 15 days. While the issuance, payment and acceptance of the certificates of payment were without prejudice to any rights of the owner or contractor under their contract, there are no written contractual terms that set out each party’s rights and obligations other than the Work Authorization.

The Amount Owing

[24] The defendant says that there is insufficient evidence to quantify Highland’s claim. Counsel referred to a budget amount of $654,675.42 set out in the Schedule of Values and an amount outstanding of $242,001.39 after taking into account interim payments.

[25] Counsel for the plaintiff submitted that Highland’s claim is straightforward and the amount owing is set out in the invoices and certificates of payment. Further, the defendant passed a resolution authorizing the precise sum claimed by Highland as due and owing.

[26] Counsel for the defendant submitted that the approval of funds cannot be interpreted to be an approval of the amount claimed by Highland. The defendant did this to be prudent, considering the requirements under the Strata Property Act, S.B.C. 1998, c. 43. Because the defendant was seeking supporting documentation from Highland, it cannot be said to have approved the amount claimed. He also submitted that the certificates of payment issued by Morrison Hershfield are not sufficient to prove Highland’s claim because they are not relevant, not admissible and not reliable.

[27] I disagree. The defendant retained Morrison Hershfield to review the work done and approve payment of all invoices. The certificates of payment are not only admissible, they are clearly relevant and reliable. The fact that the defendant approved payment of the precise amount outstanding after the insurance proceeds were applied indicates approval, particularly since the special resolution stated that the amount was “due on passage and payable on or before November 15, 2003”. Highland’s supporting documentation and billing information is in evidence and the defendant’s agents reviewed them. There is no basis for the defendant now to deny that the amount is not outstanding.

The On-Side Contract

[28] On-Side only seeks payment of interest on the accounts that were outstanding, pursuant to the contractual rate or alternatively, under the Court Order Interest Act, R.S.B.C. 1996, c. 79. Counsel for On-Side stated that the calculation of interest could be referred to the Registrar.

[29] The defendant questions the reasonableness of the cost of the work performed by On-Side, notwithstanding that all invoices were fully paid as of June 25, 2004. Counsel for the defendant submitted that there is an implied term in the On-Side Work Authorization that the cost of the work be reasonable. He complained that On-Side has not produced sufficient documents that relate to the reasonableness of the costs and the documents submitted to the court on this application include no supporting documentation.

[30] Counsel for the defendant submitted that the cost of the On-Side work is relevant because any payment to On-Side reduces the amount of insurance funds available to pay Highland. He also challenged the allocation of insurance funds as between On-Side and Highland, arguing that the shortfall of insurance funds ought to have been allocated equally between the plaintiffs, as they are related companies. He submitted that the defendant’s execution of the Proof of Loss cannot be interpreted as its approval of the apportionment of payment first to On-Side and second to Highland for a number of reasons, but primarily, as I understand it, because the Proof of Loss was executed with a full reservation of rights.

[31] The defendant retained On-Side in July 2001 to provide restoration services for River’s Edge. This contract consists of a signed Work Authorization dated July 17, 2001, which authorized On-Side to “perform all necessary repairs to the building” due to damage caused by fire as described in Schedule A. Schedule A lists (a) emergency clean-up or repair, (b) cleaning and restoration of contents, (c) structural repairs and (d) other. Schedule A is not initialled.

[32] The defendant, by signing the Work Authorization, acknowledged a number of things, including the following:

· On-Side was authorized to commence work;

· On-Side would direct invoices for the work to the defendant, its insurers or its agents, as the case may be;

· if the insurers for any reason denied payment, the defendant would be liable for payment, which would be made within 30 days of the date of the invoice;

· the defendant assigned to On-Side all payments due to it from its insurer in regard to the work performed on the property;

· the defendant irrevocably authorized and directed its insurer to pay all amounts owed on account of the payments to On-Side; and

· the defendant agreed to pay interest on overdue invoices at the rate of 18% per annum.

[33] There was a further contract in June 2002 whereby On-Side agreed to investigate and repair rot caused by water ingress in the building. This contract consists of a signed Work Authorization dated June 21, 2002, which included the following terms:

· all repairs will be inspected by the retained structural engineer and the retained building envelope consultant;

· invoices for work performed will be accompanied with all necessary time sheets and back-up documentation;

· payment of all invoices is due and payable no later than 10 days after receipt of invoice; and

· the defendant is responsible for all monies owed as a result of this work.

[34] The defendant retained Barclay Restorations Ltd. to review the costs as charged by On-Side on all of its invoices. As a result of this review, On-Side amended its invoices to the defendant. The Proof of Loss, which was signed by the defendant on December 10, 2003, specified that the remaining insurance proceeds of $700,080.71 (which was the total proceeds of $3,835,000 less interim payments of $2,840,293.91 to On-Side and $294,625.38 to Highland) be paid out as follows: $582,031.76 to On-Side and $118,048.71 to Highland.

[35] The defendant’s contention that the Proof of Loss was executed with a full reservation of rights is not supported by the terms of the contract with On-Side, which stated that the defendant irrevocably authorized and directed its insurer to pay all amounts owed on account of the payments to On-Side. The full reservation of rights, in my view, relates to the defendant’s rights as against its insurers. This “reservation” was contained in counsel’s cover letter to the insurance adjuster, enclosing the Proof of Loss, which stated:

We note that the Proof of Loss does not contain any release language and our Client maintains a full reservation of rights to pursue any claim as against the insurers or any of the parties involved in the reconstruction of our Client’s property.

[36] The reference to “other parties” cannot affect the defendant’s irrevocable direction to the insurer to pay all amounts owing to On-Side.

[37] In my view, it is too late for the defendant to put into issue the reasonableness of the amounts billed by On-Side. The full amount was paid after a review of all invoices by the defendant’s consultant and an irrevocable direction to the insurers to pay the full amount outstanding to On-Side.

[38] With respect to On-Side’s claim for interest, I find that there was an agreement by the defendant to pay interest on overdue invoices at the rate of 18% per annum under the first contract of July 17, 2001. Such interest would be payable by the defendant on amounts overdue after 30 days of the date of each invoice that was approved, to the date of payment. Because it is not clear when each invoice was approved for payment, and because payments were made at various intervals over an extensive period of time, the calculation of interest is referred to the Registrar.

[39] There was no agreement by the defendant to pay interest to On-Side under the contract of June 21, 2002. In this circumstance, absent such an agreement, the issue is whether the court may award interest under the Court Order Interest Act. Section 1 provides:

(1) Subject to section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.

[40] Section 2 provides in part:

The court must not award interest under section 1

…

(b) if there is an agreement about interest between the parties,

[41] There was no agreement between the parties about interest in respect of the second contract. On-Side has been paid in full. There is no pecuniary judgment in favour of On-Side, with the exception of the interest owing under the first contract. In these circumstances, there is no basis for making any order under the Court Order Interest Act.

Set-off Claims

[42] The defendant has claimed a set-off against any amounts owing to the plaintiffs as a result of alleged deficiencies in the work. Counsel submitted that the court should hear expert evidence on the issue of deficiencies as well as the reasonableness of the amounts paid to the plaintiffs.

[43] Counsel for the plaintiffs submitted that since On-Side has been paid in full, there is no issue left with regard to possible set-off claims or deductions. With respect to Highland, the evidence indicates that all deficiencies have been repaired. Further, even if there are any valid set-off claims or deductions, it is still open for the Chambers judge to grant judgment.

[44] In my view, it is significant that the defendant has not made a counterclaim in this action, but has instead chosen to defend the action in part on the basis of a right of set-off. The defendant has also raised the issue of deficiencies in a separate action against the plaintiffs and others, but little has been done to bring that matter forward.

[45] The authorities referred to me by counsel indicate that the court may grant judgment under Rule 18A notwithstanding a cross-claim, which is usually in the form of a counterclaim.

[46] In First City Development Corp. Ltd. v. Stevenson Construction Co. Ltd., [1983] B.C.J. No. 2197, 3 D.L.R. (4^th) 505 (C.A.), summary judgment under Rule 18 was granted to a contractor, who was a plaintiff by counterclaim, for a specific amount, in circumstances where the owner’s claims in the main action had not yet been determined. However, execution of the judgment was stayed pending determination of the main action. The B.C. Court of Appeal stated that:

We are of the view that it is open to a Chambers judge to grant judgment notwithstanding that there is an arguable cross-claim that may be offered as a defence. Rule 18 is simply too broad to accept any other interpretation…

Is this a case in which the power to grant judgment should be exercised? We think that it is. The cross-claim was offered long after the contractor should have been paid. It is arguable – at least the Chambers judge concluded that it was, and we are not prepared to say that he erred – but it is not a strong case. The owner will not or cannot particularize one part of its claim. There is no doubt that the amount claimed by the contractor is properly claimed. There is no good reason to put the contractor to the cost of proving that claim in a trial. Nor is there good reason to spend the court’s time trying a question to which there can be but one answer.

We conclude that it was open to the Chambers judge in this case to grant summary judgment to the contractor. Indeed, we think he was right to do so.

[47] In that case, there was no dispute about the amount of the contractor’s claim, and the owner’s claims were substantial. In the case at bar, the defendant appears to dispute the amount, but only in respect of whether or not judgment should be granted in a summary trial, and the set-off claims are not substantial.

[48] There was a similar result in Gauvin Construction Ltd. v. Soco Investment Inc., supra. The plaintiff contractor brought an application for summary judgment under Rule 18 against the defendant owner for a specified amount due to the contractor as certified by the owner’s consultant. The owner filed a defence of set-off regarding delay. The amount of the contractor’s claim was considerably less than the amount that had been retained in the lien holdback. The court granted judgment to the contractor and the question of whether or not the contractor was entitled to judgment for the lien holdback sum was to be dealt with at trial. No stay was necessary given the holdback funds.

[49] These principles were applied in relation to Rule 18A in Clearly Canadian Beverage Corp. v. Remic Marketing & Distribution Inc., [1992] B.C.J. No. 1867, 22 C.P.C. (3d) 387 (S.C.). The plaintiff applied under Rule 18A for judgment in the amount of $689,199.53 plus interest, for amounts allegedly due and owing by the defendant for the supply of beverage products. The defendant counterclaimed for $427,886.00, representing an amount the defendant said it was overcharged. The issue was whether the court should grant judgment on a summary basis when there is a triable counterclaim for a substantial amount that is related to the main claim. After considering First City Development Corp. Ltd. v. Stevenson Construction Co. Ltd., Mr. Justice Tysoe noted that Rule 18A, enacted after that decision, is significantly broader than Rule 18. After referring to Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, 36 C.P.C. (2d) 199 (C.A.), the court stated:

The Court should grant judgment under Rule 18 or Rule 18A unless there is a bona fide defence that should be tried. An application for summary judgment should not be dismissed by reason only that the defendant has a related cross-claim. A cross-claim is often proffered as a defence to a plaintiff’s claim and the Court should decline to grant summary judgment only if the defendant’s allegations represent a true defence in nature (and, in the case of an application under Rule 18A, if the chambers judge is not able to properly deal with the defendant’s allegations without the benefit of a trial).

Defendants often put forward cross-claims as a delaying tactic. The cross-claim is frequently expressed as a defence as well as a counterclaim. Sometimes the cross-claim has little merit and, even when it does have sufficient merit to warrant a trial, the magnitude of the cross-claim may be much less than the amount of the plaintiff’s claim. A defendant should not be permitted to delay the granting of judgment pending the trial of a cross-claim that may well not succeed or that is in an amount less than the plaintiff’s claim. A plaintiff should be able to obtain summary judgment and execute upon it to the extent that it exceeds the probable amount of an award on the cross-claim.

[50] Clearly, it is open to the court to grant judgment to a plaintiff in circumstances where a defendant has filed a counterclaim, a cross-claim or a defence of set-off. Where there is a counterclaim, the court may impose a stay of execution of all or part of any such judgment pending the determination of the counterclaim: see Clearly Canadian Beverage Corp. v. Remic Marketing & Distribution Inc., supra, at p. 6. In the present case, however, there is no counterclaim but only a defence of set-off.

[51] Counsel for the defendant did not seek a stay of execution should this court decide to grant judgment for the plaintiffs. However, Rule 18A(11) gives this court considerable discretion to grant judgment in favour of any party, either on an issue or generally and impose terms respecting enforcement of the judgment, including a stay of execution, as it thinks just. A stay may be a necessary term if there is a bona fide defence that should be tried.

[52] On the evidence before me, I am able to assess the defendant’s claim of set-off.

Evidence regarding Deficiencies

[53] The defendant’s evidence relating to its claim of set-off appears to be directed primarily at On-Side, although the defendant does not specify which matters pertain to On-Side and which pertain to Highland. However, I am able to discern from the evidence that with respect to Highland, there were some minor problems with siding and railings. These problems were the only deficiencies noted by the defendant. There was a site visit on November 19, 2003, but the defendant did not provide Highland with a deficiency list after this. Since then, these deficiencies were repaired. In addition, the company that supplied and installed the siding provided a two-year warranty, and the defendant has not advised Highland of any warranty claims other than those that have already been rectified.

[54] With respect to On-Side, the defendant’s allegations regarding deficiencies are no longer relevant due to the defendant’s payment of the full amount of the claim. In any event, the plaintiffs’ evidence sets out deficiencies that were repaired up to and including December 11, 2003, and is reasonably comprehensive. Any other alleged deficiencies were not provided to On-Side subsequent to November 19, 2003, and the evidence shows that anything further was very minor.

[55] I note that all of the affidavits filed in respect of this application were sworn in December 2003, with the exception of one affidavit filed on behalf of Highland, which was sworn December 16, 2004.

[56] Based on the material presently before the court, I find that there is no merit to the defence of set-off as against the plaintiffs.

Right of Set-off

[57] In addition, the contracts between the plaintiffs and the defendant did not include any term giving the defendant the right to withhold payment due to defective work. Counsel for the defendant referred me to Centura Building Systems Ltd. v. Cressey Whistler Project Corp. (2002), 19 C.L.R. (3d) 142, 2002 BCSC 1220, which, in my view, is distinguishable from the present case.

[58] There, the written contract between the parties did not provide an unqualified right to payment of the contract price, as there were several provisions specifying that the contractor’s right to payment was subject to the owner’s right to withhold payment due to defective work. In the present case, there were no such provisions agreed to between the parties. Further, the defendant’s consultant approved all payments. Accordingly, there is no bona fide defence that should be tried.

Summary Trial

[59] Counsel for the defendant submitted that it would be unjust to determine this action by way of a summary trial because the amount in issue cannot be determined, the matter is very complex, the contract between the parties is unclear and all supporting documents have not yet been produced by the plaintiff On-Side. Counsel argued that the plaintiffs bear the onus of proving that their invoices and the consequent depletion of the insurance funds was reasonable, and that will involve expert evidence.

[60] Counsel for the plaintiffs submitted that this is a straight-forward matter and it is appropriate in the interests of justice to grant judgment for the plaintiffs under Rule 18A.

[61] I am satisfied that this is a proper matter for determination by summary trial. The plaintiffs’ application has been filed for over a year. After receiving notice of the hearing of the application, the defendant chose not to adduce more updated evidence regarding its claims of deficiencies. The Court should decline to grant judgment under Rule 18A only if there is a bona fide defence that should be tried and if it is not able to properly deal with the defendant’s allegations without the benefit of a trial: Clearly Canadian Beverage Corp. v. Remic Marketing & Distribution Inc., supra. I have been able to deal with the defendant’s allegations in this matter, as outlined above, and I have determined that there is no bona fide defence that should be tried.

[62] In these circumstances, it would not be unjust to decide this matter by summary trial. The factors that I must take into account are well known:

· the amount involved;

· the complexity of the matter in issue;

· the urgency of the matter;

· the likelihood of prejudice from delay;

· the cost of proceeding to a conventional trial in relation to the amount involved;

· the course of the proceedings; and

· any other matters that arise for consideration.

See Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., supra; Canadian Imperial Bank of Commerce v. Charbonnages de France International S.A. (1994), 95 B.C.L.R. (2d) 104, 117 D.L.R. (4^th) 262 (C.A.); F.W.C. The Land Co. Inc. v. Kopas & Burritt Funding Inc., [1994] B.C.J. No. 2203, 98 B.C.L.R. (2d) 303 (C.A.).

[63] The plaintiff Highland has proven the amount involved, the matter is not overly complex and Highland continues to suffer prejudice as a result of non-payment of a significant amount of money. Throughout the course of these proceedings, the defendant’s actions appear to be governed by imposing delay on the plaintiffs, and raising issues that have questionable merit to further delay the inevitable payment. In my view, the interests of justice demand that this matter be determined under Rule 18A.

[64] The plaintiff On-Side’s claim for interest, while not calculated, is likely modest in relation to the cost to proceed to a five-day trial. It is not complex. The amount can be determined through an accounting before the Registrar. Any further delay would unduly prejudice On-Side.

Conclusion

[65] Judgment will be granted to the plaintiff Highland in the amount of $291,621.76, plus interest at 2% per month, payable on amounts overdue after 15 days of the date of each invoice that was approved, to the date of payment. The calculation of interest may be referred to the Registrar unless the parties otherwise agree.

[66] Judgment will be granted to the plaintiff On-Side, in an amount to be referred to the Registrar, for interest on overdue invoices issued under the contract of July 17, 2001, at the rate of 18% per annum, payable on amounts overdue after 30 days of the date of each invoice that was approved, to the date of payment.

[67] As I have concluded that there is no merit to the defendant’s claim of set-off, there will be no stay of execution.

[68] The plaintiffs will have their costs.

“B. Fisher, J.”
The Honourable Madam Justice B. Fisher

Citation:	*On-Side Restorations et al v. Strata Plan NW 1815,*
	2005 BCSC 152