CITATION: Coldmatic Refrigeration of Canada Ltd. v. Kenaidan Contracting Ltd., 2007 ONCA 176

DATE: 20070315

DOCKET: C44264

COURT OF APPEAL FOR ONTARIO

RE:

COLDMATIC REFRIGERATION OF CANADA LTD. (Plaintiff (Appellant)) – and – KENAIDAN CONTRACTING LTD. (Defendant (Respondent))

BEFORE:

FELDMAN, SHARPE and SIMMONS JJ.A.

COUNSEL:

Patrick Summers

for the appellant

Anthony Scane

for the respondent

HEARD:

March 13, 2007

On appeal from the judgment of Justice David G. Stinson of the Superior Court of Justice dated September 13, 2005.

E N D O R S E M E N T

[1] The appellant raises two issues on this appeal. The first is that the trial judge erred in his interpretation of the contract, with the result that the respondent was held to be entitled to retain a back-charge of $64,955.92 plus G.S.T. on a $1,697,736 contract. The second issue is that the trial judge erred in the amount he awarded for costs, $93,604.17 inclusive of disbursements and G.S.T.

[2] On the interpretation of the contract issue, the appellant argues that the proper interpretation of the relevant provisions of the contract is that Coldmatic was not responsible for providing any of the electrical wiring beyond its refrigerated room and automatic doors. The trial judge found that although Coldmatic was not responsible for providing the main wiring that connected the refrigerated room with the electrical distribution panel, the contract, properly interpreted, provided that Coldmatic was responsible for certain “secondary wiring” that connected its installation to “disconnect boxes”, that then led to the main electrical distribution panel.

[3] It appears that while one of the disconnect boxes was required by the Electrical Code for the door operations, the other was put in by agreement on site but was not required by the Code. The trial judge relied in part on the broad description of Coldmatic’s responsibilities in the contract, which included “design…and install[ation of] the walk-in refrigerator and freezer panel system”, emphasizing its responsibility to provide a fully operational system. This was a designer-built project, and in our view, the trial judge was entitled to find that both disconnect boxes and the wiring leading to them from the system supplied by Coldmatic was within the scope of Coldmatic’s responsibility under the contract. We would therefore not give effect to the first ground of appeal.

[4] The appellant’s main concern with the award of costs at trial was that the amount awarded exceeded the amount in issue in the action. In our view, in the circumstances of this case, the trial judge made no error in his award of costs. Counsel for both sides spent similar amounts of time in the prosecution of this litigation, so that the appellant cannot say that the respondent’s counsel spent an inordinate amount of time that should not be reflected in an award of costs. A significant factor leading to this award was a Rule 49 offer that was not accepted by the appellant. We would grant leave to appeal the costs order but dismiss the appeal.

[5] In the result, the appeal is dismissed with costs to the respondent fixed at $15,000, inclusive of disbursements and G.S.T.

Signed: “K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”