Court File and Parties
Citation: Stephenson v. Thom Win Construction, 2012 ONSC 1560 Divisional Court File No.: DC-09-000-106-00 Date: 2012-03-13
Ontario Superior Court of Justice Divisional Court
Before: Cunningham A.C.J., Matlow and Baltman JJ.
Between: Deborah Stephenson and Stephen Woodrow, Appellants — and — Thom Win Construction Limited, et al, Respondents
Counsel: Deborah Stephenson and Stephen Woodrow, Self Represented Andrew Mae, for the Respondents
Heard at Oshawa: March 5, 2012
Endorsement
By the Court:
[1] This is an appeal from the decision of J.R. MacKinnon J. dated November 25, 2009, following the trial of a lien action.
[2] The Appellants argue that the trial judge failed to give proper weight to the evidence concerning events occurring during construction which they say demonstrates the real agreement between the parties. Moreover, they say the trial judge misapprehended or ignored important evidence and that he was biased.
[3] We disagree. On the evidence before the trial judge it was entirely open to him to make the findings he did. No evidence was presented challenging the quality of the work performed by the Respondent, Thom Win Construction Limited nor was there any evidence challenging the quantum of the claim. Indeed, the appellants acknowledge their indebtedness but still blame the Respondents for the mortgagee’s decision not to advance under the mortgage.
[4] As to the notion of a verbal contract regarding post contract payment, MacKinnon J. properly found there was no such thing. Any such agreement would have, as he found, flown in the face of the written agreement which he found to be the entire construction agreement between the parties. The present contract’s payment terms are quite specific and unambiguous.
[5] What the Appellants seem to be suggesting is that the Respondents, by continuing on the job without receiving the draws to which they were entitled, confirmed the alteration in the terms of the contract. What does seem clear is that the Respondents, anxious to be paid, attempted to assist the Appellants and, indeed, even attempted to arrange a three way meeting between the Appellants, the builder and itself to resolve the impasse. This meeting did not occur as the Appellants apparently refused to attend. We can find no contractual interference by the Respondents as there was no evidence of any intentional act on their part to cause a breach nor any wrongful interference on their part.
[6] As to the assertion of bias, we find no basis for this complaint which was never advanced at trial. Indeed, the reasons of MacKinnon J. appear eminently reasonable and, based upon the evidence before him, fair.
[7] It is argued that because MacKinnon J. conducted a pre-trial in another action involving the Respondents that somehow a reasonable apprehension of bias is raised. There is absolutely no basis for this complaint.
[8] The appeal is dismissed.
[9] Costs to the Respondent fixed at $25,000 all inclusive.
Cunningham ACJ
Matlow J
Baltman J
Released: