George Robson Construction (Weston) Limited v. Hamilton (City)

CITATION: George Robson Construction (Weston) Limited v. Hamilton (City), 2007 ONCA 395

DATE: 20070529

DOCKET: C43819

COURT OF APPEAL FOR ONTARIO

BORINS, MACFARLAND AND CUNNINGHAM A.C.J. (AD HOC)

BETWEEN:

GEORGE ROBSON CONSTRUCTION (WESTON) LIMITED and CANADIAN MICROTUNNELLING LTD.

Plaintiffs (Respondents)

And

CITY OF HAMILTON

Defendant (Appellant)

Counsel:

G. Kuzyk for the appellant

Gary Benner (in person) for the respondents

Heard: May 9, 2007

On appeal from the judgment of Justice John Jennings of the Superior Court of Justice dated May 17, 2005.

ENDORSEMENT

[1] The appellant appeals the judgment of Jennings J. dated May 17, 2005 wherein he ordered the appellant to pay to the respondent Canadian Microtunnelling Ltd. (CML) the sum of $302,445.00 plus interest and costs as set out in that judgment.

[2] This was the second judgment in favour of the respondent CML. This case was tried in 2000 and by a judgment dated February 28, 2001, the respondent was awarded damages and costs against the appellant. However, by order of this court dated March 31, 2003 a new trial was ordered. That new trial is the subject of this appeal.

[3] The essential thrust of the appellant’s argument is that the trial judge’s findings contradict the clear language of the contract between the parties. It is argued that the contract clearly required CML to use concrete in the sewer construction and if it bid the contract using material (here steel) other than that specified in the contract documents it did so at its peril. Its action for damages, the appellant submits ought to have been dismissed.

[4] We disagree. The trial judge found on the evidence

… that the defendant advised Benner that steel casing was acceptable notwithstanding the language in addendum 6, that it accepted Robson’s bid knowing that it had been based on a steel pipe carrier and when it determined that it would no longer accept a steel casing it did nothing to prevent the plaintiff from incurring the standby charges attendant upon assembling the necessary equipment to proceed with the job.

[5] In our view the trial judge’s findings are amply supported in the evidence. The appellant has not persuaded us of any palpable and/or overriding error. The appeal is dismissed.

[6] The respondent has cross-appealed the trial judge’s dismissal of its claim for punitive and exemplary damages as well as costs.

[7] The respondent did not seek leave to appeal costs in the court below and accordingly his cross-appeal in this respect must be dismissed.

[8] While the trial judge noted that the respondent’s conduct could “… hardly be characterized as good faith dealing …” he said that it did not rise to the level of egregiousness that would attract an award of punitive damages. The trial judge is in the best position to assess the nature of the relationship between the parties and their conduct having had the opportunity to hear and observe them over the days of trial. We would not interfere with his conclusion and would dismiss the cross-appeal.

[9] As the respondent has been largely successful it is entitled to its costs of the appeal which it seeks in the sum of $33,000. Mr. Benner who is a principle of CML represented the company by leave of the Superior Court.

[10] In our view a reasonable sum for costs of this appeal is $18,000 inclusive of disbursements and G.S.T. and we order costs in that sum to the respondent CML.

"S. Borins J.A."

"J. MacFarland J.A."

"D. Cunningham A.C.J. S.C.J. ad hoc"