DATE: 20061012

DOCKET: C42900

COURT OF APPEAL FOR ONTARIO

RE:

JANITOR JANITORIAL SERVICES LTD. (Plaintiff/Appellant) – and – ATTORNEY GENERAL OF CANADA (Defendant/Respondent)

BEFORE:

MACPHERSON, CRONK and GILLESE JJ.A.

COUNSEL:

Dennis Apostolides

for the appellant

Lynn Marchildon

for the respondent

HEARD & ENDORSED:

October 11, 2006

On appeal from the judgment of Justice Albert J. Roy of the Superior Court of Justice dated October 28, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant appeals from the judgment of Roy J. dated October 28, 2004 dismissing the appellant’s claims and awarding costs to the respondent in the amount of $40,000.

[2] The appellant’s argument is that the respondent improperly modified a contract for janitorial services, thereby rendering the appellant’s tender non‑compliant.

[3] We reject this submission for two reasons. First, the trial judge made a clear finding of fact that the appellant accepted, and abided by for four years (including two renewals), the 7.5 hour work day clarification. This finding was fully supported by the evidence. Second, contrary to the cases relied upon by the appellant, the tender documents in this case provided that no binding contract would arise until the tender and acceptance documents had been executed by the respondent and delivered to the appellant. The clarification at issue here was sought by the respondent and agreed to by the appellant prior to contractual relations arising.

[4] The appellant acknowledges that if we do not accept his argument about the contract, the issue relating to the use of the employer’s register to quantify the actual work performed by the appellant’s employees does not arise.

[5] The appeal is dismissed with costs to the respondent fixed at $3471.97 inclusive of disbursements and GST.