COURT FILE NO.: 306/02
DATE: 20021002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GEOFFREY KENDALL ARCHITECT INC. Appellant
- and -
1317621 ONTARIO INC., THE EQUITABLE TRUST COMPANY and BLACK INC. Respondents
Counsel: Lee Guarino, for the Appellant Jeffrey A. Armel, for the Respondent, 1317621 Ontario Inc.
HEARD: October 2, 2002
ARCHIE CAMPBELL J.: (Orally)
[1] The facts in this construction lien appeal from Master Saunders are set out in the factums.
[2] Counsel agree that the order, for the purposes of appeal, is a final order.
[3] It is a pure question of fact in every case like this whether or not a contract is a new contract or an "amendment to" an earlier contract within the meaning of s.1(1), the definition of contract in the Construction Lien Act.
[4] Every case turns on its own facts. Nothing in the judgment of Master Clark in Ravell Investments v. DCLC Developments Ltd., (1995), 1995 7100 (ON SC), 24 O.R. (3d) 863, governs the findings of fact in this case. Ravell does not go so far as to say that no new contract can ever arise in law so long as there was, at some earlier point in time, a prior and separate contract for similar work, whether completed or not. It is still a question of fact in every case whether or not there is a new contract.
[5] It is a question of pure fact in this case whether or not Project 0109 which started in June, 2001, was a new contract or an "extra" which amended the original contract reflected in Project 9811, on which the last work was done on February 28, 2001.
[6] Although internal labels may not be conclusive, the plaintiff's documentation provides some objective evidence to support the learned Master's conclusion. The learned Master in finding two contracts considered not only the plaintiff's own internal documentation but also all of the surrounding circumstances. The forty-four units were done and so far as Vandenbergh was concerned, the plaintiff's work was completed at the end of February, 2001. Although it seems likely that the first contract was completed, it was not necessary for the Master to make an express finding to that effect. Failure to complete a field review in respect of the first contract, although a piece of evidence to consider, is not in itself conclusive either in fact or in law.
[7] It was open to the Master in all of the evidence, including the conduct of the party to conclude that the letter of June 1, 2001, (which also reflect a site review) reflected a new contract.
[8] The appellant's case depends entirely on a factual re-argument of the case decided by the Master. Considerable deference must be given to findings of fact made by the learned and experienced Master. There is no demonstrated error in principle, there was evidence to support his conclusion and the appeal must therefore be dismissed with costs fixed at $3,250 payable in 60 days.
ARCHIE CAMPBELL J.
Date of Reasons for Judgment: October 2, 2002
Date of Release: October 4, 2002
COURT FILE NO.: 306/02
DATE: 20021002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GEOFFREY KENDALL ARCHITECT INC. Appellant
- and -
1317621 ONTARIO INC., THE EQUITABLE TRUST COMPANY and BLACK INC. Respondents
ORAL REASONS FOR JUDGMENT
ARCHIE CAMPBELL J.
Date of Reasons for Judgment: October 2, 2002
Date of Release: October 4, 2002