Court of Appeal for Ontario
Date: 2017-10-16 Docket: C63462
Judges: Simmons, Rouleau and Brown JJ.A.
Between
Tyler MacNamara Plaintiff (Respondent)
and
2087850 Ontario Ltd., o/a Strathcona Construction, Robert Koblinsky, and Richard Morris Defendants (Appellants)
Counsel
Michael Farace, for the appellants
Sarah Whitmore and Crawford Smith, for the respondent
Heard and released orally: October 16, 2017
On appeal from: the judgment of Justice J.T. Akbarali of the Superior Court of Justice, dated February 10, 2017, with reasons reported at 2017 ONSC 499.
Reasons for Decision
[1] The appellants argue that the motion judge committed four errors in finding that:
- a contract existed between the parties;
- there had been fraudulent invoicing;
- overcharging had been concealed; and
- double-charging for HST had taken place.
The appellants argue that the motion judge committed a fifth error in admitting into evidence portions of Mr. Finnegan's affidavit and cross-examination.
[2] With respect to the first ground, the appellants submit that there was no contractual agreement between the parties as to the work to be undertaken and the basis for payment. In the appellants' submission, the work carried out was on an ad hoc basis. In the absence of an agreement, Strathcona was free to charge what it wanted for the work.
[3] We dismiss this ground of appeal. There was ample evidence supporting the motion judge's conclusion, at para. 26, that the parties had an oral agreement and that "[t]he contract between the parties required Strathcona to bill its actual costs plus a mark-up. The mark-up Strathcona charged was 25%."
[4] This was a two-and-a-half-year project at a cost of over six million dollars with architect plans and a site supervisor. In our view, it was simply inconceivable that the work was all done ad hoc as suggested by the appellants. It is also inconceivable that there was no agreement as to what, how or in what amount the work could be billed.
[5] As we have concluded that the motion judge correctly determined the existence and central terms of the contract, the second, third and fourth grounds of appeal fall away. To succeed on these grounds, the appellants had to succeed on the first ground. Each of the three impugned findings logically followed once the motion judge found that a contract was in place with the terms set out above.
[6] Finally, we are not persuaded that it was an error to admit Mr. Finnegan's evidence about the amount of excess charges included in Strathcona's invoices. His testimony in this respect amounted to evidence gathering and arithmetic. It did not stray into the realm of expert evidence. The motion judge could conclude that Mr. Finnegan's previous employment by the respondent did not interfere with his ability to give this evidence. During the oral argument before this court, the appellants conceded that they are not challenging Mr. Finnegan's calculations.
[7] In the result, the appeal is dismissed. Costs of the appeal are awarded to the respondent and fixed in the amount of $25,000, inclusive of disbursements and applicable taxes.
Janet Simmons J.A.
Paul Rouleau J.A.
David Brown J.A.