Court of Appeal for Ontario

Citation: DiBattista*Gambin Developments Limited v. Niran Construction Limited, 2013 ONCA 161

Date: 20130315

Docket: C53713

Winkler C.J.O., Armstrong and Hoy JJ.A.

Between

DiBattista*Gambin Developments Limited, Northview Downs Developments Ltd., and The Corporation of the City of Brampton

Plaintiffs (Respondent)

and

Niran Construction Limited

Defendant (Appellant)

Counsel:

James R. Smith, for the appellant

Robert D. Malen, for the respondent

Heard and released orally: February 28, 2013

On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice, dated March 14, 2011.

ENDORSEMENT

[1] The appellant contractor, Niran Construction Limited, appeals the March 14, 2011 judgment of the trial judge ordering it to pay the respondent developer, DiBattista*Gambin Developments Limited, $185,967.08.

[2] The respondent hired the appellant to construct a bicycle path in a residential subdivision the respondent was developing in the City of Brampton. The City took issue with the quality of the bicycle path and required the respondent to replace it. The respondent did so at a cost of $185,967.08 and claimed that amount from the appellant.

[3] The appellant argues that the trial judge erred in two respects. First, he failed to appreciate the evidence relevant to the issue of whether the appellant properly constructed the bicycle path. Second, he erred in law by failing to make a deduction for betterment from the amount claimed by the respondent.

[4] The essence of the appellant’s first argument is that there was insufficient evidence before the trial judge to support his conclusion that the appellant had not properly constructed the bicycle path. We disagree.

[5] Both parties relied on expert evidence on this issue. The trial judge gave detailed reasons for completely discounting the appellant’s expert. In contrast, the trial judge found the evidence of the respondents’ expert to be credible, consistent, logical and balanced. The trial judge was entitled to accept and rely on the opinion of the respondent’s expert in concluding that the respondent had satisfied on a balance of probabilities that the appellant had failed to properly compact the subsoil and/or granular when it constructed the bicycle path.

[6] As to the second issue raised, the consensus of the experts was that a properly constructed bicycle path of this type should last approximately 15 years. The path constructed by the appellant was replaced after six years at a cost to the respondent of the amount awarded. The appellant argues that there should be a deduction for betterment because the City will have had a bicycle path for 21 years before having to replace it again.

[7] The trial judge concluded that because in this case the respondent will be transferring the bicycle path to the City, the respondent will get no value for the delivery of a new bicycle path to the City. If a deduction for betterment were taken, the respondent would suffer a loss because it would have no way of recovering the additional cost it had to incur to replace the bicycle path. He concluded that as the reason the expenses were incurred was the fault of the appellant it would be inequitable to reduce the respondent’s damages by the cost of the betterment. We agree.

[8] In the result this appeal is dismissed. This is one of two appeals heard by us today involving the parties. While unsuccessful on this appeal, the appellant (qua respondent) was the successful party on the other appeal, accordingly, there will be no costs on either appeal.

“Warren K. Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“Alexandra Hoy J.A.”