Kenneth J. M. Coull

Varcon Construction Corporation appealed a partial summary judgment granted to 2099082 Ontario Limited (AWD Contractors) concerning a construction subcontract dispute.

Varcon's appeal challenged findings that AWD's work was not deficient and that AWD did not fail to rectify deficiencies.

AWD cross-appealed the motion judge's decision to order a trial on the subcontract's warranty provisions.

The Court of Appeal dismissed Varcon's appeal, finding no palpable and overriding errors in the motion judge's factual findings.

The Court allowed AWD's cross-appeal, determining there was no genuine issue requiring a trial on the warranty, as a plain reading of the contract did not support Varcon's interpretation that AWD was a general guarantor for all project defects.

The plaintiff, 2099042 Ontario Limited (AWD), brought a motion for summary judgment to dismiss the counterclaim of the defendant, Varcon Construction Corporation (Varcon).

Varcon's counterclaim sought damages for alleged deficient work, failure to warn, and failure to rectify deficiencies by AWD, which Varcon claimed led to a sewage system failure due to soil consolidation.

The court found that AWD's work was performed in a workmanlike manner, met all required standards, and was not deficient.

Consequently, the court granted partial summary judgment in favour of AWD, dismissing Varcon's claims related to deficiencies, failure to warn, and failure to rectify.

However, the court determined that genuine issues requiring a trial existed regarding AWD's liability under the warranty provisions of the subcontract, even in the absence of deficient workmanship.

A trial was ordered to resolve these warranty issues and, if liability was established, to assess damages on a quantum meruit basis.

The moving party (former husband) brought a motion to change a 2013 consent order to terminate his $1,500 monthly spousal support obligation and life insurance requirement, citing his voluntary retirement at age 65 and resulting income reduction.

The court found his retirement constituted a material change in circumstances.

However, recognizing the responding party's compensatory claims from a 25-year marriage where she stayed home to raise four children, the court declined to terminate support entirely.

Instead, spousal support was reduced to $1.00 per month effective July 1, 2016, and the life insurance obligation was maintained to secure potential future support.