CITATION: Bemar Construction (Ontario) Inc. v. Mississauga (City), 2007 ONCA 685
DATE: 20071009
DOCKET: C41355
COURT OF APPEAL FOR ONTARIO
FELDMAN, ARMSTRONG AND MACFARLAND JJ.A.
BETWEEN:
BEMAR CONSTRUCTION (ONTARIO) INC.
Plaintiff (Appellant)
and
THE CORPORATION OF THE CITY OF MISSISSAUGA
Defendant (Respondent in Appeal)
BETWEEN:
THE CORPORATATION OF THE CITY OF MISSISSAUGA
Plaintiff by Counterclaim (Respondent in appeal)
and
BEMAR CONSTRUCTION (ONTARIO) INC. and BEMAR CONSTRUCTION LTD.
Defendants to the Counterclaim (Appellant)
Steven W. Pettipiere for the appellant Bemar Construction (Ontario) Inc.
R.S.M. Woods for the respondent Corporation of the City of Mississauga
Heard: October 3, 2007
On appeal from the judgment of Justice Joseph M. Fragomeni of the Superior Court of Justice dated January 12, 2004.
ENDORSEMENT
[1] The issues raised on this appeal are essentially fact-driven.
[2] The appellant raises four specific points:
(1) Delay caused by lack of a full building permit.
The appellant argues that seven months of its delay was caused by the City’s failure to obtain a full building permit for the project until the spring of 1991. The trial judge did not accept this submission. He found that Mr. Ryan listed all the reasons for his delay up to that point in his letter of April 17, 1991. That letter did not refer to not having the full building permit as a reason for Bemar’s delay. The trial judge concluded, based on the letter, that the lack of a full building permit was not a cause of any delay to Bemar in that period.
(2) Delay caused by the need for new wiring and installation of Bell data lines.
The appellant says the trial judge did not calculate enough delay time incurred as a result of the City’s decision to replace the wiring and to add Bell data and telephone lines. The trial judge accepted the expert evidence from Mr. Koerth as to the proper way to calculate the delay time referable to these two extras, as he was entitled to do.
(3) Office Overhead
The trial judge accepted the evidence of Ms. Howe, the forensic accountant of the respondent, that the appellant was fully compensated for the office overhead portion of the compensable delay. Again, he made no error in so doing.
(4) Claim for Interest
The trial judge awarded no interest to the appellant because he concluded that the appellant was owed no money when he was terminated on the project.
[3] In our view, the findings of the trial judge are amply supported by the record. This was a 54-day trial which took place over two years. The evidence was presented in a thorough fashion and the trial judge was in the best position to weigh and assess that evidence.
[4] In general, he accepted the evidence of the experts, Mr. Koerth and Ms. Howe, over that of the appellant, its experts and Mr. Ryan.
[5] Where the trial judge’s findings are supported by the evidence there is no basis for this court to interfere.
[6] The appeal is therefore dismissed with costs fixed in the amount of $35,000 plus disbursements and GST.
Signed: “K. Feldman J.A.”
“Robert P. Armstrong J.A.”
“J. MacFarland J.A.”