Marcia J. Oliver

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.

A construction contractor brought a motion seeking to stay its own court action so that the parties’ dispute over project delays and asbestos-related issues could proceed under the arbitration provisions contained in a CCDC-2 construction contract.

The defendant argued the motion was brought too late and that the contractual dispute resolution process had been discharged.

The court held that although s. 7 of the Arbitration Act, 1991 did not apply because the moving party had commenced the action, the court retained authority under s. 106 of the Courts of Justice Act to stay the proceeding.

Given the strong policy favouring arbitration and the parties’ contractual agreement to resolve disputes through the contract’s dispute resolution process culminating in arbitration, the court exercised its discretion to stay the action.

Issues regarding delay or compliance with contractual timelines were matters for the arbitrator.

A contractor brought a motion for summary judgment seeking dismissal of a tenant’s subrogated claim for water damage caused by vandalism in a shopping mall.

The tenant argued the contractor negligently failed to secure a construction area that allowed a trespasser to access a fire hose, causing flooding.

The contractor relied on a lease clause containing a mutual release and waiver of subrogation between landlord and tenant extending to parties “for whom the landlord is responsible in law.” Applying the principles from Fraser River and London Drugs, the court held the parties intended the waiver to extend to contractors performing renovation work for the landlord.

The court concluded the contractor fell within the protected class and that the claim was barred, making a trial unnecessary.