COURT OF APPEAL FOR ONTARIO
BORINS, FELDMAN and ROULEAU JJ.A.
B E T W E E N :
TORONTO TRANSIT COMMISSION
Harvey J. Kirsh and Roger Gillott for Toronto Transit Commission
Plaintiff/Appellant
Respondent by Cross-Appeal
- and -
GOTTARDO CONSTRUCTION LIMITED and CGU INSURANCE COMPANY OF CANADA
H. James Marin and Wendy R. Cole for Gottardo Construction Limited
Matthew R. Alter for CGU Insurance Company of Canada
Defendants/Respondents
Appellants by Cross-Appeal
Heard: June 21 & 22, 2005
On appeal from the judgment of Justice Frances P. Kiteley of the Superior Court of Justice dated December 18, 2003 reported at 2003 64236 (ON SC), 68 O.R. (3d) 356.
A D D E N D U M
ROULEAU J.A.
1The reasons for judgment in this appeal were released on September 7, 2005.
2Following the issuance of its reasons for judgment, the court received correspondence from CGU Insurance Company of Canada requesting that paragraph 5 of the reasons be modified to make it clear that, at the hearing, CGU advised the court that only the narrow issue of the trial judge’s obiter referred to in paragraph 3 of the reasons would not be argued. After a review of my notes of the hearing, I agree that paragraph 5 could be misinterpreted. The concession was directed specifically to the trial judge’s obiter concerning the absence of an explicit forfeiture provision in the instructions to tenderers and did not relate, generally, to the trial judge’s interpretation of the bid bond. Counsel for the Toronto Transit Commission’s understanding is similar to mine. As a result, I am amending paragraph 5 of the reasons to read as follows:
5On appeal, CGU conceded that the trial judge erred when, in obiter, she stated that the absence of an explicit forfeiture provision in the TTC’s instructions to tenderers discharged CGU from any obligations under the bid bond. As a result, that ground of appeal did not have to be argued.
“Paul S. Rouleau J.A.”
“I agree S. Borins J.A.”
“I agree K. Feldman J.A.”