DATE: 20060628

DOCKET: C42783

COURT OF APPEAL FOR ONTARIO

RE:

D & S GLASS INSTALLATIONS INC. (Plaintiff/Respondent) -and- BONDFIELD CONSTRUCTION COMPANY LIMITED (Defendant/Appellant)

BEFORE:

LASKIN, FELDMAN and GILLESE JJ.A.

COUNSEL:

Joseph Cosentino

for the appellant

Martine M. Morin

for the respondent

HEARD & RELEASED ORALLY:

June 16, 2006

On appeal from the judgment of Justice Backhouse of the Superior Court of Justice, dated November 10, 2004 made at Toronto, Ontario.

E N D O R S E M E N T

[1] The appellant contends that the trial judge erred in law in failing to hold that the subcontract unambiguously required the respondent to pay for the cost of the aluminum door hardware. We do not accept this contention.

[2] First, in our view, the provision in the addendum “Add the following cash allowance … to cover the cost of door hardware, $50,000” created an ambiguity in respect of which party was obligated to pay for the door hardware on the aluminum doors as opposed to other doors in the building.

[3] Second, contrary to the argument of the appellant, at least one of the parties to the contract, the respondent, did not understand that it was responsible for paying for the aluminum door hardware. The trial judge accepted the evidence of the respondent’s representative on this point (see para. 22 of the reasons).

[4] Third, although the issue of ambiguity was apparent from counsels’ opening statements, the appellant did not object to the introduction of parol evidence on the issue of which party was responsible to pay.

[5] In our opinion, the trial judge was entitled to look outside the four corners of the subcontract to determine which party was responsible. Moreover, the trial judge was entitled to find that Mr. Aquino’s fax, replying to the respondent’s request for clarification, bound the appellant not only to provide the aluminum door hardware, but to pay for it as well (see para. 23 of the reasons). The appellant has not persuaded us that the trial judge made any reviewable error in so finding.

[6] Accordingly, the appeal is dismissed.

[7] On the cross-appeal, we think that there is some evidence to support the trial judge’s conclusion on the re-testing, and accordingly we would not interfere with her conclusion. The cross-appeal is therefore dismissed.

[8] The respondent is entitled to its costs, which we fix in the amount of $7,000 all inclusive.