D. Gurizzan

Dirm 2010 Inc. brought a construction lien claim against Prestressed Systems Incorporated (PSI) for unpaid work on a concrete topping subcontract for a parking garage.

PSI counterclaimed, alleging Dirm's work was defective and that Dirm fundamentally breached the contract.

The court found that the contract consisted of the negotiated terms, not the onerous unsigned purchase order PSI attempted to impose.

The court held that Dirm's work, while requiring some remediation, did not constitute a fundamental breach.

PSI breached the contract by terminating Dirm without reasonable opportunity to cure and without justification.

Dirm was awarded $1,315,159.20 for completed work, allowable extras, and lost profit, less reasonable backcharges for deficiencies.

The plaintiff was entirely successful in defeating the defendant's motion for security for costs.

The plaintiff sought costs of $21,200 on a substantial indemnity basis, while the defendant argued the parties should bear their own costs or costs should be in the cause.

The court found no basis for substantial indemnity costs and noted the plaintiff's time expenditure was somewhat excessive.

Costs were fixed at $11,000 inclusive of HST payable forthwith.