Sean W. Kelly

Homeowners and the Ontario New Home Warranty Program brought actions against a concrete supplier (Bertrand) and a cement manufacturer (Lafarge) for defective concrete foundations caused by the introduction of fly ash.

The trial judge found Lafarge 80% liable and Bertrand 20% liable in negligence for failing to conduct adequate testing.

Lafarge appealed the liability findings and the costs award (which ordered Lafarge to pay 90% of costs due to its conduct at trial).

Bertrand cross-appealed seeking full indemnity.

The Court of Appeal dismissed the appeals and cross-appeals, upholding the trial judge's findings on liability, apportionment, and costs, while varying the judgment slightly to reflect settlements reached during the appeal regarding prejudgment interest and one homeowner's garage.

Appeals and cross-appeals arising from a lengthy construction-defect trial concerning premature deterioration of residential concrete foundations caused by defective concrete supplied for homes built in Eastern Ontario.

The principal dispute on appeal concerned whether the trial judge erred in accepting the theory that Type C fly ash supplied by the cement manufacturer caused the failure, rather than the aggregate and water-content theory advanced by the manufacturer.

The court upheld the trial judge’s negligence findings against both the concrete supplier and the cement manufacturer, rejected allegations of bias and procedural unfairness, and dismissed the supplier’s claim for full indemnity.

The court also upheld the trial costs ruling requiring the manufacturer to bear 90% of costs, while varying the judgment only to reflect settlements regarding detached garage damages and prejudgment interest.