Court of Appeal for Ontario

Citation: Niran Construction Limited v. DiBattista*Gambin Developments Limited, 2013 ONCA 162

Date: 2013-03-15

Docket: C53660

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

Between

Niran Construction Limited

Plaintiff (Respondent)

and

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

Defendants (Appellants)

Counsel:

Robert D. Malen, for the appellants

James R. Smith, for the respondent

Heard and released orally: February 28, 2013

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

ENDORSEMENT

[1] The appellants, now DiBattista*Gambin Developments Limited, appeal the trial judge’s March 14, 2011 judgment in a construction lien action. The trial judge found that the respondent’s lien was valid and that there were amounts outstanding under the lien. He dismissed the appellant’s counterclaim. The trial judge’s conclusion turned on the interpretation of a rider to the contract entered into between the appellant and the respondent.

[2] The appellant issued a Request for Tenders in respect of work to be done on a residential subdivision it was developing in the City of Brampton. The Tender included a form of estimated unit price contract. The respondent submitted a tender and the parties subsequently signed a rider, which converted the contract to a fixed price contract with a specified maximum price – the “Maximum Upset Price”. At the time, what are described as “second submissions” had been submitted to the City. The City had not yet approved the contract drawings and specifications.

[3] The respondent sought payment for two items: additional asphalt and a sealant called Reclamite, both required by the City after the second submissions had been submitted to it.

[4] The issues of interpretation before the trial judge were: (1) whether the maximum price applied to work required under the second submissions or whatever final drawings and specifications might be approved by the City, and; (2) if the former, whether the two items at issue constituted “Extras” within the meaning of the rider and the respondent was entitled to be paid for them.

[5] In careful and detailed reasons, the trial judge concluded that the maximum applied only to work required under the second submissions and that the respondent was entitled to be paid for the two items. The appellant argues that the trial judge erred in his interpretation of the rider.

[6] We do not agree.

[7] The trial judge identified and correctly applied the applicable principles governing the interpretation of contracts. His interpretation was faithful to the language of the rider, made commercial sense, and was supported by the subsequent conduct of the parties – particularly with the appellant’s request for a quote for Reclamite. (Had the application of Reclamite been included in the Maximum Upset Price, as the appellant argues, there would have been no reason for the appellant to ask for a quotation.)

[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. There will be no costs on either appeal.

“Warren K. Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“Alexandra Hoy J.A.”