DATE: 20021219
DOCKET: C36575
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., GOUDGE AND MACPHERSON JJ.A.
B E T W E E N :
M. C. COLONIAL CABINETS & MILLWORK LTD.
Jennifer J. Quick for the appellant
Plaintiff (Respondent/Appellant by Cross-Appeal)
- and -
INTERTHON CONSTRUCTION AND MANAGEMENT ASSOCIATES LTD.
Rodney M. Godard for the respondent
Defendant (Appellant/Respondent by Cross-Appeal)
Heard: December 17, 2002
Released Orally: December 17, 2002
On appeal from the judgment of Justice Joseph G. Quinn dated May 31, 2001.
BY THE COURT:
[1] The appeal and cross-appeal relate to a contract for the construction and installation of cabinets in a cottage on the shores of Lake Erie. Interthon, a construction and renovation company, retained Colonial to construct and install the cabinets.
[2] During the installation, Interthon complained about the quality of some of the cabinets, in particular the fact that some of the lacquer would not adhere to the wood.
[3] The parties attempted to resolve their dispute about the causes and consequences of the problem. They failed.
[4] Colonial sued for the value of the contract plus extras. Interthon counter‑claimed for the costs of repairing and replacing the cabinets.
[5] The trial judge awarded Colonial the contract price of $59,450 plus a small number of extras totalling $8319. He deducted $28,796.30 in payments Interthon had made. After adding applicable taxes, Colonial’s award on its claim was $43,715.70.
[6] On the counterclaim, the trial judge concluded that Colonial was responsible for the defects. He awarded repair and replacement costs of $13,000.
[7] The trial judge made no award as to costs.
[8] Interthon appeals from the trial judge’s judgment on the claim and the counterclaim. Colonial cross‑appeals on the issue of costs.
A. Interthon’s appeal
[9] Interthon contends that Colonial’s failure to supply all the cabinets without defects constituted a fundamental breach of the contract.
[10] We disagree. There is nothing in the record, including pleadings and evidence, to support this argument. The essence of the trial was a dispute about the ‘extras’ component of a construction contract, not whether the contract was terminated by Interthon. Indeed, Interthon took the benefit of the contract by using the cabinets delivered by Colonial.
[11] Interthon contends that the trial judge erred by rejecting uncontroverted evidence that Interthon’s costs of replacing the defective and undelivered cabinets was about $100,000.
[12] We disagree. Once the trial judge found as a fact that the defects in the cabinets could be repaired with an “as new” result, the proper measure of damages was the costs of repair. On that issue, there was evidence on the record about the costs of labour and material to support the trial judge’s quantification of the costs of repair at $8000. Nor do we see any basis for interfering with the trial judge’s awarding of a $5000 credit to Interthon for Colonial’s uncompleted work, especially bearing in mind that Interthon retained the cabinets that had been delivered.
B. Colonial’s cross‑appeal
[13] Colonial contends that the result of the litigation was a net judgment in its favour of $29,805. In spite of this result, the trial judge held that “[a]s results were divided there should be no costs.” Colonial submits that this effectively amounts to a distributive costs order which is in error.
[14] We disagree. Colonial was successful on its claim and unsuccessful with respect to Interthon’s counterclaim. Success was divided in the two results, not just with respect to different issues in the context of a single claim. The trial judge’s costs disposition was well within the discretion accorded him by rule 27.09(3).
C. Disposition
[15] The appeal and the cross‑appeal are dismissed.
[16] Costs of the appeal and the cross‑appeal to the respondent (Colonial) fixed at $3000.
RELEASED: December 19, 2002
“R. Roy McMurtry C.J.O.”
“S. T. Goudge J.A.”
“J. C. MacPherson J.A.”