COURT OF APPEAL FOR ONTARIO

CITATION: Elite Construction Inc. v. Canada (Attorney General), 2021 ONCA 803

DATE: 2021-11-09

DOCKET: C69101

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Elite Construction Inc.

Plaintiff (Appellant)

and

The Attorney General of Canada (representing Public Works and Government Services Canada)

Defendant (Respondent)

Counsel:

John V. Sestito, for the appellant

Wendy Wright, for the respondent

Heard: November 5, 2021 by video conference

On appeal from the judgment of Justice Andrew Pinto of the Superior Court of Justice, dated January 22, 2021, with reasons reported at 2021 ONSC 562.

REASONS FOR DECISION

[1] The plaintiff appeals from the summary judgment granted by the motion judge that dismissed the plaintiff’s action against the respondent for what was alleged to be outstanding amounts arising out of a construction contract. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The appellant challenges the motion judge’s conclusion on essentially three grounds. First, it submits that this was not a proper case for summary judgment because there were factual issues in dispute. We do not agree. The motion judge found that the essential facts were agreed in terms of what the parties had done at various points during the construction project. He also noted that the parties had filed extensive material on the motion. It was open to the motion judge, in those circumstances, to conclude that he could reach “a fair and just determination” of the issues raised by the parties, especially the effect of the terms of the contract on the appellant’s claims: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. We note that the motion judge gave detailed and thorough reasons for all of his conclusions. On the record before him, it was open to him to conclude that no outstanding balances were owing.

[3] Second, the appellant submits that the motion judge erred in concluding that the respondent had not waived its right to rely on the strict terms of the contract, especially the notice requirements contained therein. Again, we do not agree. The motion judge properly set out the legal requirements for a finding of waiver in a contractual setting and he made the requisite findings of fact with respect to those requirements. In particular, the motion judge found that the appellant had not provided the notice required under the contract for any claim for extra expenses or losses. He also found that the appellant never issued a Notice of Dispute as required by the contract regarding any Change Orders. Those findings of fact were grounded in the record that was before the motion judge.

[4] Third, the appellant submits that the motion judge erred in striking out its claims for quantum meruit and unjust enrichment. Once again, we do not agree. The motion judge correctly concluded that there was no room for either of those equitable principles to apply where the parties were operating pursuant to a contractual agreement between them.

[5] The appeal is dismissed. The respondent is entitled to its costs of the appeal in the agreed amount of $16,000 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“I.V.B. Nordheimer J.A.”