Marcia J. Oliver

The defendant brought a motion for leave to appeal the order of Myers J. The Divisional Court granted the motion for leave to appeal and awarded costs of $5,000 to the moving party.

The defendant brought a motion for leave to appeal the order of Myers J. The Divisional Court granted the motion for leave to appeal and awarded costs of $5,000 to the moving party.

The Ministry of Transportation (MTO) appealed a trial judgment finding it liable for the failure of a road surface treatment applied by the respondent contractors.

The trial judge concluded the contract was a method specification contract, placing the risk of failure on the MTO, and heavily criticized MTO's counsel for allegedly improperly influencing its expert witness, awarding full indemnity costs.

The Court of Appeal upheld the trial judge's interpretation of the contract but found he erred in his severe criticism of MTO's trial counsel, noting that counsel's interactions with the expert were appropriate under the principles in Moore v. Getahun.

Consequently, the Court reduced the trial costs award from full to substantial indemnity.

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.

The appellant tenants suffered $7,000,000 in water damage after a vandal opened a fire hose in an area used by the respondent independent contractor.

The tenants sued the contractor for negligence.

The contractor moved for summary judgment, arguing it was protected by a waiver of subrogation clause in the commercial lease between the tenants and the landlord, which extended to those for whom the landlord was 'in law responsible'.

The Court of Appeal upheld the summary judgment, finding that the landlord was in law responsible for the contractor due to an indemnity provision in the lease, and that the contractor met the Fraser River test to benefit from the clause as a third party.

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.

A construction contractor sued a municipality for damages arising from delay in authorizing work after the contractor’s tender was accepted for a landfill leachate system project.

The court held that the municipality was responsible for two overlapping periods of delay: the late communication of the contract award and the municipality’s failure to resolve whether the contractor’s proposed construction methodology formed part of the contract.

Interpreting the tender documents, the court concluded that the methodology submission was required to be incorporated into the contract and that the contractor was justified in insisting upon its inclusion before commencing work.

The delays forced a split construction schedule and caused financial losses including lost revenue, escalation costs, refinancing expenses, and equipment rentals.

Damages were assessed using the plaintiff’s expert methodology and awarded accordingly.