CITATION: Homewood Development Inc. v. 2010999 Ontario Inc., 2015 ONSC 2103
DIVISIONAL COURT FILE NO.: 386/14 DATE: 20150331
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERMAN, HACKLAND AND CORBETT JJ.
BETWEEN:
HOMEWOOD DEVELOPMENT INC.
Respondent/Plaintiff
(Defendant to the Counterclaim)
– and –
2010999 ONTARIO INC. and MERIDIAN CREDIT UNION LIMITED
Appellant/Defendant
(Plaintiff by Counterclaim, 2010999 Ontario Inc.)
Allan D. J. Dick and Andy Seretis, for the Respondent/Plaintiff (Defendant to the Counterclaim)
James Zibarras, for the Appellant/Defendant (Plaintiff by Counterclaim, 2010999 Ontario Inc.)
HEARD at Toronto: March 31, 2015
D. J. CORBETT J. (ORALLY)
[1] This case turned on questions of fact, findings of credibility and mixed questions of fact and law, all of which attract a deferential standard of review. B. O’Marra J. concluded that the Master made no palpable and overriding error. The questions before us are whether B. O’Marra J. applied the proper test and whether his conclusions are reasonable.
[2] Master Albert found that the contract evolved over the time on the basis of multiple plans for the project and discussions between the parties. This resulted in significant changes that required changes to the construction schedule. These are all findings of fact rooted in the evidence and B. O’Marra J. was reasonable in finding no palpable and overriding error.
[3] The appellant cites Rayment v. Lane, [2007] 65 C.L.R. (3d) 1, for the proposition that where new plans will result in changes to the price or schedule of the contract, it is the responsibility of the contractor to raise these issues in a timely manner, failing which it will be bound to execute the new plans without additional payment or changes to the construction schedule. That was the finding accepted by the Court in that case, in the context of the specific contract, specific changes to the work in that case, and on the basis of the expert evidence in that case.
[4] In this case, the Master considered all of the pertinent factors - the original contract, the fresh plans and the expert evidence before her - in concluding that the owner repudiated the agreement. The Master found that the owner had an obligation to act reasonably and renegotiate the milestones when the order of work changed. There is no palpable and overriding error in this conclusion and B. O’Marra J. was reasonable in so finding.
[5] Despite Mr. Zibarras’s very able submissions, I would dismiss the appeal.
LEDERMAN J.
COSTS
[6] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered by D. L. Corbett J. The respondent will have costs fixed at $10,000 all inclusive.”
___________________________ D. L. CORBETT J.
LEDERMAN J.
HACKLAND J.
Date of Reasons for Judgment: March 31, 2015
Date of Release: April 2, 2015
CITATION: Homewood Development Inc. v. 2010999 Ontario Inc., 2015 ONSC 2103
DIVISIONAL COURT FILE NO.: 386/14 DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, HACKLAND AND
D. L. CORBETT JJ.
BETWEEN:
HOMEWOOD DEVELOPMENT INC.
Respondent/Plaintiff
(Defendant to the Counterclaim)
– and –
2010999 ONTARIO INC. and MERIDIAN CREDIT UNION LIMITED
Appellant/Defendant
(Plaintiff by Counterclaim, 2010999 Ontario Inc.)
ORAL REASONS FOR JUDGMENT
D. L. CORBETT J.
Date of Reasons for Judgment: March 31, 2015
Date of Release: April 2, 2015