Kenneth W. Movat

The plaintiff demolition subcontractor brought a lien action for unpaid work, and the defendant general contractor counterclaimed for damages caused when the plaintiff severed an underground electrical duct bank, causing a power outage at a wastewater treatment plant.

The court found the plaintiff breached its subcontract and was negligent by failing to review drawings, obtain locates, and follow its own demolition plan.

However, the court also found the defendant 15% contributorily negligent for failing to communicate its knowledge of the duct bank to the plaintiff.

The plaintiff's lien claim was offset against 85% of the defendant's damages, resulting in a net judgment payable by the plaintiff to the defendant.

The plaintiff supplier brought a motion for summary judgment against the owner and the principal of the contractor for unpaid invoices.

The contractor had terminated its contract with the owner, and the owner signed a termination agreement promising to pay the contractor's outstanding obligations to specific suppliers, including the plaintiff.

The court found that the owner was directly liable to the plaintiff under the principled exception to the privity of contract doctrine.

The court also found that the principal's personal guarantee was not released because the release was contingent on the owner paying the invoices.

Summary judgment was granted against the owner and the principal.

The plaintiff subcontractor moved for summary judgment against the defendant surety on a labour and materials payment bond after the general contractor defaulted and failed to pay the plaintiff's invoices.

The surety argued that the plaintiff had fully mitigated its damages by entering into a replacement subcontract with the new general contractor for a higher amount than the remaining value of the original subcontract.

The court held that the plaintiff's opportunity to profit from the replacement subcontract was separate from and collateral to the general contractor's failure to pay the invoices.

The motion for summary judgment was granted.

The plaintiff contractor sued the defendant municipality for unpaid amounts under a unit-price contract for road reconstruction.

The claims included unpaid quantities of unit-price line items, unpaid claims for changes or extra work asserted during the project, and claims for changes and extras discovered during litigation.

The court first determined that the claims discovered during litigation were barred due to failure to provide timely notice, but the municipality had waived strict compliance with notice provisions for claims asserted during the project.

The court then analyzed each of the 36 individual claims, weighing the evidence of the parties' respective witnesses and records.

Ultimately, the court awarded the plaintiff $547,261.75 plus pre-judgment interest.

Following the dismissal of the plaintiff's claim at trial, the successful defendant sought costs on a substantial indemnity scale, relying on an offer to settle for a dismissal without costs.

The court held that the offer amounted to an offer to capitulate and did not engage Rule 49.10.

Costs were awarded on a partial indemnity scale, fixed at $35,873.11, taking into account the modest complexity of the claim and the plaintiff's late abandonment of an intentional interference with economic relations claim.

Addendum to previously released reasons for judgment correcting an administrative error concerning the identification of counsel.

After the original decision was released, the court was advised that the names of counsel for the parties had been reversed.

The court issued an addendum to accurately reflect counsel for the plaintiff and defendant.

The addendum does not alter the substance of the earlier reasons or the disposition of the case.