CITATION: Jelco Construction Ltd. v. 1298781 Ontario Inc. and Equitable Trust Company, 2012 ONSC 1059
DIVISIONAL COURT FILE NO.: 253/08
DATE: 20120213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, PEPALL AND HARVISON YOUNG JJ.
BETWEEN:
JELCO CONSTRUCTION LTD.
Plaintiff
(Respondent in Appeal)
– and –
1298781 ONTARIO INC. and THE EQUITABLE TRUST COMPANY
Defendant
(Appellant in Appeal)
Gregory N. Hemsworth, for the Plaintiff (Respondent in Appeal)
Leroy A. Bleta, for the Defendant (Appellant in Appeal)
HEARD at Toronto: February 13, 2012
HARVISON YOUNG J. (ORALLY)
[1] The defendant, 1298781 Ontario Inc. appeals from the judgment of Thorburn J. granting the plaintiff, Jelco Construction Ltd. judgment in the net amount of $62,983.84.
[2] The appellant is the owner of an apartment building with an underground parking garage which was in need of repairs. It retained Jelco to do the work. Jelco had invoiced the appellant for work performed under the contract in the amount of $372,385.00 but 1298781 paid only $293,821.23. Although the appellant acknowledged the contract, its position was that the contract was a fixed rate contract with an upper limit of $300,700.00 on the cost of construction work, subject to a single change order that it had approved. The appellant had also counterclaimed for various losses including loss of rental income resulting from the plaintiff’s delay.
[3] The appellant raises two submissions on appeal. First, the appellant argues that the trial judge erred in refusing to allow the appellant to produce documentary evidence in support of its claim for loss of rental income and second, the appellant submits that the trial judge erred in finding that the contract was a unit price contract with no maximum amount.
[4] The standard of review is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] SCC 33, [2002] 2 S.C.R. 235. In short, while the standard of review is correctness on a pure question of law, questions of mixed fact and law are subject to the palpable or overriding errors standard, unless it is clear that the judge erred in law or principle.
[5] With respect to the first issue, the appellant argues that the trial judge erred in refusing to allow the appellant to produce documentary evidence in support of its counterclaim for lost rental income as a result of the plaintiff’s delay.
[6] At trial, the appellant did not seek leave to produce or introduce such documentary evidence, nor did it seek an adjournment to permit such evidence to be obtained. Given that this issue was not raised before the trial judge, she committed no error in this regard.
[7] The second ground of appeal is that the trial judge erred in finding that the contract was a unit price contract rather than a fixed price contract.
[8] In oral argument, the appellant also submitted that there was a maximum price of $300,700.00, which was a term of the contract. The trial judge clearly considered the documents as a whole including the addendum and properly determined that this was a unit price contract with no maximum price. Therefore, we do not give effect to this ground of appeal.
[9] Lastly, the respondent points out that the former order makes no mention of post-judgment interest, although the trial judge ordered pre and post-judgment interest in her reasons and quantified the rate of post-judgment interest at six percent at paragraph three of her Costs Endorsement. As the defendant has not objected, this Court orders that her judgment is varied to allow for post-judgment interest at the rate of six percent. The appeal is dismissed.
SWINTON J.
[10] This appeal is dismissed for oral reasons delivered by Harvison Young J. Judgment below is varied to allow post-judgment interest at six percent. Costs to the respondent are fixed at $10,000.00 inclusive of HST and disbursements.
HARVISON YOUNG J.
SWINTON J.
PEPALL J.
Date of Reasons for Judgment: February 13, 2012
Date of Release: March 2, 2012
CITATION: Jelco Construction Ltd. v. 1298781 Ontario Inc. and Equitable Trust Company, 2012 ONSC 1059
DIVISIONAL COURT FILE NO.: 253/08
DATE: 20120213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, PEPALL AND HARVISON YOUNG JJ.
BETWEEN:
JELCO CONSTRUCTION LTD.
Plaintiff
(Respondent in Appeal)
– and –
1298781 ONTARIO INC. and THE EQUITABLE TRUST COMPANY
Defendant
(Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: February 13, 2012
Date of Release: March 2, 2012