Jason Cicchetti

Following a trial regarding a construction contract dispute, the parties made written submissions on costs.

The court found that the Ministry of Transportation of Ontario (MTO) engaged in reprehensible and unconscionable conduct by manipulating expert evidence and withholding information.

As a result, the court awarded full indemnity costs to Leveque.

Bruell was awarded mixed partial and substantial indemnity costs based on a Rule 49 offer to settle.

The court also granted a Sanderson Order, directing MTO to directly pay the partial indemnity costs of the successful defendant, AECOM, because MTO's defence strategy made it necessary for AECOM to remain in the litigation.

The Ministry of Transportation (MTO) awarded a contract to Leveque for highway surface treatment.

The initial treatment failed shortly after application.

MTO ordered Leveque to remove and replace it, arguing Leveque was responsible under the contract's warranty for selecting incompatible aggregate.

Leveque performed the work under protest and sued for breach of contract.

The court found the contract was a method specification, meaning MTO bore the risk of the design's performance.

The court held that the failure was primarily caused by MTO's excessive binder application rates, poor weather, and MTO's refusal to restrict heavy truck traffic or permit sanding.

MTO was found solely liable for breach of contract and ordered to pay damages for the extra work.