DATE: 20040602

DOCKET: C38478

COURT OF APPEAL FOR ONTARIO

RE: LIVINGSTON EXCAVATING AND TRUCKING INC. (Plaintiff/Respondent) – and – MAPLE ENGINEERING & CONSTRUCTION LTD. (Defendant/Appellant)

BEFORE: WEILER, FELDMAN and BLAIR JJ.A.

COUNSEL: Ian Latimer for the appellant

Robert Nightingale for the respondent

HEARD: May 17, 2004

On appeal from the judgment of Justice Patricia H. Wallace of the Superior Court of Justice dated May 28, 2002.

E N D O R S E M E N T

[1] Maple Engineering & Construction Ltd. appeals from the judgment of Wallace J. dated May 28, 2002 ordering Maple to pay damages for breach of contract to Livingston Excavating and Trucking Inc. in the amount of $52,550.

[2] The trial judge found that the parties had entered into a contract pursuant to which Maple agreed to rent Livingston’s 892E John Deere long-reach excavator at the rate of $140 per hour for the duration of Maple’s job for the barge dredging of Hamilton Harbour at the site of the construction of a new pier. Maple replaced Livingston with another sub-constructor, Tri City Equipment, a few days after the contract commenced, based on a better rate. The trial judge’s finding of liability is not appealed. The appellant raises several grounds of appeal with respect to the issues of damages, however.

[1] The main point raised is that the trial judge committed reversible error in determining that Livingston would have spent 1000 hours in performance of the contract.

[2] This finding was made partly – but only partly – on the basis of Tri-City time cards that were examined by Livingston’s expert, Mr. Bertoia, and that show 141 days of work totalling 1254 hours. The appellant argues that the time cards were not in evidence and that Mr. Bertoia’s opinion is of no force because its factual underpinnings are not proven.

[3] Whether the time cards themselves were in evidence, however, there was ample evidence from which the trial judge could infer and find, as she did, that Livingston would have spent 1000 hours on the job. Not the least of this evidence was the acknowledgement by Maple’s principal, Mr. Vaillantcourt, in cross-examination, that “Tri-City excavation crews were on the site on each and every one of the days that are contained in the schedule to Mr. Bertoia’s report that lists or attempts to list the number of hours that were worked by the Tri-City employees”. That schedule showed 141 days and 1254 hours. There was therefore an evidentiary basis upon which the trial judge could draw the inference that the parties were in effect in agreement as to the number of days Tri-City spent on site and the number of hours worked. Taken together with the other factors referred to at paras. 44-46 of her reasons, there was ample support for the trial judge’s finding that Livingston would have worked 1000 hours on the project. There being no palpable or overriding error on her part, there is no basis for this court to interfere.

[4] The appellant also argued that the trial judge erred with respect to the contingencies she took into account, mitigation, the failure to take into account overtime and holiday pay deductions called for under the Employment Standards Act and, an allowance for extras. We see no error on the part of the trial judge in her disposition of these issues.

[5] The appellant further argued that the trial judge erred in failing to credit Maple with a payment of $2,990 made to Livingston for certain preparation that it had done in relation to the contract. In our view, the trial judge did err in this regard. Those costs would have been included in Livingston’s total cost of the contract, had it been carried through, and are already properly reflected in the trial judge’s award of damages. It was not a collateral contract. The judgment will therefore be varied downward by $2,990.

[6] Finally, counsel agree that the trial judge made a minor arithmetical error of $750 in arriving at the sum of $52,550. The amount, based on her calculation should have been $51,800.

[7] The judgment is therefore varied downward to $48,810. The appeal is otherwise dismissed.

[8] The respondent is entitled to its costs fixed at $12,000 all inclusive.

“K.M. Weiler J.A.”

“K.N. Feldman J.A.”

“R.A. Blair J.A.”