DATE: 20060523

DOCKET: C44521

COURT OF APPEAL FOR ONTARIO

RE:

MID-PARK CONSTRUCTION (1995) LIMITED (Plaintiff/Respondent) v. CONBORA FORMING INC., DOMINION CONCRETE GROUP LIMITED, RUMANEK & COMPANY LIMITED, TRUSTEE IN BANKRUPTCY OF THE ESTATE OF DOMINION CONCRETE GROUP LIMITED, DOMINION CONCRETE NORTH AMERICA LTD., ST. MARY’S CEMENT INC. and K.J. BEAMISH CONSTRUCTION CO. LIMITED (Defendant/Appellant)

BEFORE:

O’CONNOR A.C.J.O., DOHERTY and MACFARLAND JJ.A.

COUNSEL:

Barry A. Percival, Q.C.

for the appellant

Larry Banack and Celeste Poltak

for the respondent

HEARD: May 12, 2006

RELEASED ORALLY: May 12, 2006

On appeal from the judgment of Justice Kiteley of the Superior Court of Justice dated November 2, 2005.

E N D O R S E M E N T

[1] The respondent and five other companies sued the appellant, Conbora, and a number of other parties for defects in concrete sold to build houses. The claims against the appellant are in contract and tort. The claims against the other defendants are only in tort.

[2] The respondent moved for summary judgment against the appellant, but not the other defendants. The appellant conceded the existence of the contract, the breach of contract and did not challenge the damages alleged by the respondent, at least insofar as they related to rebuilding the homes (the “hard costs”). The motion judge granted summary judgment on the contract claim in the amount of the hard costs plus pre-judgment interest.

[3] In our view, the respondent’s claim in contract was discrete from the tort claims advanced against the appellant and the other defendants. The appellant was the only defendant with a contractual relationship with the respondent. We agree with the motion judge that the contract claim and the damages for which she gave judgment raise no genuine issue for trial.

[4] The appellant argued that granting summary judgment will not simplify or shorten these proceedings. Mr. Banack, on behalf of the respondent, has acknowledged that the summary judgment finally disposes of the respondent’s contractual claims, including all aspects of the claim for damages arising from the breach of contract. Thus, the summary judgment has significantly simplified these proceedings, particularly from the respondent’s standpoint.

[5] In order to accurately reflect the reasons of the motion judge and the position taken by Mr. Banack, we direct that para. 5(d) of the order below be varied to read as follows: “Quantification of damages in tort”.

[6] Subject to this minor variation in the wording of the order, the appeal is dismissed.

[7] We award costs to the respondent in the amount of $12,500, inclusive of disbursements and GST.

“Dennis O’Connor A.C.J.O.”

“Doherty J.A.”

“J. MacFarland J.A.”