2 total
Appeal dismissed on contract interpretation but trial costs reduced after finding counsel did not improperly influence expert.
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.
Municipality liable for tendering delay and contract dispute causing construction losses.
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.
