Court of Appeal for Ontario

Citation: 614128 Ontario Ltd. (Trisan Construction) v. Toronto (City), 2020 ONCA 803 Date: 2020-12-11 Docket: C68216

Before: Lauwers, Miller and Nordheimer JJ.A.

Between:

614128 Ontario Ltd. o/a Trisan Construction Applicant (Appellant)

and

City of Toronto Respondent (Respondent)

Counsel: Krista J. McKenzie, for the appellant Michele A. Wright and Georgia Tanner, for the respondent

Heard: December 2, 2020 by video conference

On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice dated February 12, 2020, with reasons reported at 2020 ONSC 902.

REASONS FOR DECISION

[1] Trisan Construction appeals from the dismissal of its application for a declaration that the City of Toronto (the "City") pay to it a construction holdback in the amount of $174,381.14 plus HST for two contracts signed in 2012 and 2013. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The appellant was the general contractor on five watermain and sewer projects for the City. It commenced five lawsuits, one on each project, to claim additional amounts for extras and delay.

[3] On or about November 13, 2018, the parties entered into a global settlement of all five lawsuits. The appellant signed a release stating there were no further outstanding claims on the projects. Pursuant to the settlement, the City paid the appellant the agreed settlement amount of $1,287,500 plus HST.

[4] At the time of the settlement, two of the five projects were not yet complete as deficiencies were still outstanding and there were completion holdbacks on both projects. The appellant’s position was that these were statutory holdbacks impressed with a trust under the Construction Lien Act, R.S.O. 1990, c. C.30.

[5] The City’s position was that the funds held back on the two projects were not impressed with a trust under the Act at the time of the settlement because any potential lien rights against the holdback funds had long since expired. Consequently, nothing in the Act precluded the City and the appellant from incorporating any claims for payment of the monies into the broadly worded and final global settlement between them.

[6] The City applied the holdback money to the settlement funds paid to the appellant when it paid the settlement funds. The appellant claimed that the holdback money belonged to it, separate and apart from the settlement, and that the failure of the City to pay these monies to the appellant amounted to breach of trust.

[7] The application judge found that the terms of the 2018 settlement constituted a full and final agreement between the parties as to all amounts to be paid by the City in satisfaction of the work done with respect to the projects. She found that the City was not obliged to make any further payment to the appellant.

[8] The core of the application judge’s reasoning is found at para. 38 of her reasons where she said:

The plain words of the settlement and release read together are not ambiguous. They settle all outstanding claims as between these parties for the contracts at issue. In this case, there is no unknown claim that arose after the settlement. Trisan was aware of its holdbacks and was tracking and accounting [for] the funds held back by the City. It did not raise this issue as a separate ground for payment at the time of the mediation and the settlement agreement did not create any exception or "carve-out" for a finishing holdback.

[9] We agree with the application judge. The parties entered into a full and complete settlement of all claims that were outstanding between them. The appellant was fully aware of the monies that the City had held back. If the appellant had intended that the holdback funds were to be paid over and above the settlement amount, it could easily have so stipulated in the settlement agreement. It did not. The appellant can not now come forward and advance a claim for additional funds in light of the unambiguous terms of the settlement agreement and release.

[10] The appeal is dismissed. The respondent is entitled to the costs of the appeal fixed in the agreed amount of $7,000 inclusive of disbursements and HST.

“P. Lauwers J.A.” “B.W. Miller J.A.” “I.V.B. Nordheimer J.A.”