COURT OF APPEAL FOR ONTARIO

CITATION: Todd Brothers Contracting Limited v. Algonquin Highlands (Township), 2015 ONCA 737

DATE: 20151103

DOCKET: C60276

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Todd Brothers Contracting Limited

Plaintiff (Appellant)

and

Corporation of the Township of Algonquin Highlands

Defendant (Respondent)

Leo Klug, for the appellant

Todd Robinson, for the respondent

Heard: October 27, 2015

On appeal from the decision of Justice Stephen T. Bale of the Superior Court of Justice, dated March 6, 2015 with reasons reported at 2015 ONSC 1501.

ENDORSEMENT

[1] The motion judge granted summary judgment to the respondent dismissing the appellant’s claim on a construction contract for the refurbishment and extension of a small airport. The motion judge relied heavily on a waiver clause signed by the appellant which provided:

And finally, further it is in this capacity that I swear and declare that I will not seek any compensation for damages for timing delays or work identified but not completed on this project in the event that the Township cannot proceed to any of the phases as a result of matters beyond the control of the Township of Algonquin Highlands or delays resulting from the review being completed by the CEAA [Canadian Environmental Assessment Agency] in a timely fashion, any other public issues/concerns or the withdrawal of funding from applicable sources. [Emphasis added.]

[2] The respondent accepts the effect of the waiver as expressed by the appellant at para. 6 of its factum:

Todd Brothers executed the Compensation Waiver Acknowledgement and agreed not to seek compensation for damages for timing delays or for work identified but not completed in the event that the Township (a) cannot proceed to any of the phases as a result of matters beyond the control of the Township of Algonquin Islands, or (b) delays resulting from the review being completed by the CEAA in a timely fashion, or (c) as a result of any other public issues/concerns, or (d) as the result of the withdrawal of funding from applicable sources.

For practical purposes, only (c) and (d) are in issue.

[3] The heart of the motion judge’s findings is set out in the following paragraphs of the reasons for decision:

13 CEAA completed its review in December of 2010, and provided a report to Township council. Although the report was not filed as evidence on this motion, it would appear that the airport project was approved, subject to the implementation of measures to mitigate any adverse environmental effects, and subject to certain conditions with respect to reporting. However, a newly elected Township council whose members were predominately opposed to the project passed a resolution to "defer the execution of the [CEAA report] until a further review of the project is conducted."

14 In January of 2011, the Ministry of Natural Resources (MNR) proposed a joint airport improvement project, as part of which the Ministry would relocate its northeastern fire management headquarters, and consolidate its regional operations, at the Haliburton/Stanhope airport. Pursuant to its contribution agreement with OMAFRA [the Ontario Ministry of Agriculture, Food and Rural Affairs], the Township was obliged to consider MNR's proposal; and, although the evidence is not entirely clear on this point, it appears that the joint project proceeded, rather than Parts A, B and C of the original project.

15 Todd Brothers' position on the waiver is that Township council should have signed off on the CEAA report in December of 2010, and that its failure to do so was a purely political decision. However, the political decision was based upon public concerns (the members elected to council had campaigned in opposition to the original project), and the proposal made by MNR in January 2011 would have intervened in any event.

16 In these circumstances, the Township is entitled to rely upon the written waiver in full defence to Todd Brothers' claim. The Township was unable to proceed with Parts A, B and C of the original project prior to December of 2010, because of the ongoing CEAA review. It was unable to proceed with those parts of the original project after December of 2010, because of the joint airport improvement proposal made by MNR. Had the Township failed to pursue the joint project with MNR, as required by the OMAFRA contribution agreement, it risked withdrawal of provincial funding.

[4] The appellant argues that there was no evidence to support reliance on the “other public issues/concerns” provision in the waiver. However, the respondent points out that there was public outcry about the project, which was to extend and refurbish a small airport. The airport project was an issue in the 2010 municipal election, which returned a majority of councillors opposed to it, as the motion judge noted at para. 13.

[5] The appellant argues that there was no evidence that a withdrawal of funding might occur, so as to trigger that clause in the waiver. However, the respondent points to the January 2011 proposal of the Ministry of Natural Resources as a relevant “public issue” for the purpose of the waiver, which also triggered the funding aspect. The Township’s financial contribution agreement with the OMAFRA, under which the project was to be funded, provides:

4.10 Alternatives to Project. If the Recipient [Township] becomes aware of any alternatives to the Project that are more cost effective (for example, at area/joint servicing scheme), the Recipient shall immediately notify OMAFRA, in which case OMAFRA may, in its sole discretion, adjust the Financial Assistance. Likewise, if OMAFRA becomes aware of any alternatives to the Project, that are more cost effective, the Recipient will be notified and OMAFRA may, in its sole discretion, adjust the Financial Assistance.

[6] The evidence supports the motion judge’s conclusions, at para. 14, that the Township was obliged to consider the joint development, and, at para 16, that failing to pursue the joint project “risked withdrawal of provincial funding.” There is ample support for the motions judge’s finding that in the circumstances, “the Township is entitled to rely upon the written waiver in full defence to Todd Brothers' claim.”

[7] Finally, counsel for Todd Brothers advises that he was unable to get a clear explanation of why the Township failed to proceed with the original project, and why the appellant did not get the work on the joint project. He submits the motion judge should have refused summary judgment and required the matter to proceed to trial after discoveries. We would not give effect to this submission. The original project was evidently superseded by the joint project. Todd Brothers could have used other avenues under the Rules of Civil Procedure open to a party to a pending motion to obtain information from other parties, even non-parties, as to why Todd Brothers did not participate in the joint project, in preparing evidence to respond to the summary judgment motion, but did not.

[8] The appellant has not identified any error of law, or a palpable and overriding error of fact, in the motion judge’s application of the waiver clause in granting summary judgment.

[9] The appeal is dismissed with costs fixed in the amount of $8,500 all-inclusive, payable to the respondent.

“K. Feldman J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”