



COURT OF APPEAL FOR ONTARIO

CITATION: Berkley Insurance Company v. Rob Piroli
    Construction Inc., 2016 ONCA 885

DATE: 20161122

DOCKET: C61859

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Berkley Insurance Company

Applicant

and

Rob Piroli Construction Inc.

Respondent

Sonny Ingram, for the appellant

Myron W. Shulgan, for the respondent

Heard and released orally: November 16, 2016

On appeal from the order Justice Paul Perell of the
    Superior Court of Justice, dated February 8, 2016.

ENDORSEMENT

[1]

The appellant brought an application under rule 14 of the
Rules of
    Civil Procedure
seeking a mandatory order for the payment of money
    pursuant to an undertaking to pay.  The respondent agreed in its material that
    there was a contract wherein it undertook to pay the money as part of security
    for bonds in a construction project and that when the time came for the company
    to live up to its undertaking, it failed to do so and was in breach of that contract.

[2]

The application judge accepted the argument of the respondent that the
    application had to be dismissed on the ground that the application was not
    properly brought under rule 14 because the request for a mandatory order was
    not ancillary to a claim for relief.

[3]

We do not agree.  The application was properly founded under subrule (h),
    no material facts in dispute, and under subrules (d) and (g), the determination
    of rights following the interpretation of a contract and relief ancillary to
    those rights.  In this case, the interpretation of the contract was conceded,
    allowing the court to determine whether the right to a mandatory order flows
    from the breach of contract.

[4]

Because the application was dismissed on procedural grounds, the
    application judge did not decide the substantive legal issue nor did he make
    the necessary findings of fact based on the record to do so.

[5]

The respondents position on the merits is that an undertaking to pay
    money is not enforceable by a mandatory order.  Damages must be proved.  Also,
    no irreparable harm was shown on this record.

[6]

The decision of the application judge that the appellant was not
    entitled to proceed by application is set aside.  The matter is referred back
    to the application judge for decision on the merits based on the record as it
    exists, or on an expanded record as determined by the application judge, if
    requested by the parties.

[7]

Costs of the appeal in the agreed amount of $7,500 inclusive of
    disbursements and HST to the appellant.  The disposition of the order of costs
    below in the amount of $10,000 will be left to the application judge.

K. Feldman J.A.

P. Lauwers J.A.

B.W. Miller J.A.


