Court File and Parties

CITATION: Man-Shield (NWO) Construction Inc. v. 1022403 Ontario Ltd c.o.b. as Mirmil Products, 2019 ONSC 3992

DIVISIONAL COURT FILE NO.: DC-18-0010-00

DATE: 20190625

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MAN-SHIELD (NWO) CONSTRUCTION INC. Appellant

-and-

1022403 ONTARIO LTD c.o.b. as MIRMIL PRODUCTS Respondent

BEFORE: Lafreniere, Myers, and Williams JJ.

COUNSEL: R. Johansen, for the Appellant C. Skipper, for the Respondent

HEARD at Thunder Bay: June 25, 2019

Endorsement

Myers J. (orally):

[1] The appellant appeals from the judgment dated January 8, 2018, of Pierce J. after trial of this lien action awarding $142,553.33 plus interest and costs to the Plaintiff.

[2] An appeal lies to this court under s. 71 of the Construction Lien Act. The standard of review is correctness on issues of law and palpable and overriding error on questions of fact and mixed fact in law. Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[3] The appellant argues that it paid the subcontractor plaintiff all amounts certified by the project architect and therefore, the judge erred in finding the plaintiff was entitled to stop work. Rather, it argues the Plaintiff abandoned the project in breach of its subcontract. It relies on Voka Steel Inc. v. Edgecon Construction Inc., 2011 ONSC 1938, 200 A.C.W.S. (3d) 98 for the principle that a subcontractor is not free to terminate work and abandon a project when faced with a payment dispute. Rather, it should continue to work under protest.

[4] But in this case the trial judge found that the plaintiff had fully performed its contractual obligations, subject to very small deficiency issues that were under active discussion among the parties.

[5] There was evidence in the form of the General Contactor Schedules, showing its confirmation that the plaintiff had completed 100 per cent of its work. There was evidence supporting the judge’s finding that the plaintiff had virtually completed all of its work and that its deferral of deficiencies did not bring the project to a halt. Rather, it was confronted with the general contractor’s refusal to pay for work done thereby committing a material breach of contact. Safinco Mechanical Ltd. v. Toronto District Public School Board (2002), 111 A.C.W.S. (3d) 254 (ONSC)

[6] There was evidence of the parties’ ongoing investigations, discussions, and negotiations of deficiencies that also supports the judge’s finding that the plaintiff did not abandon the contract as a matter of fact.

[7] Whether the finding of abandonment or no abandonment is a question of fact or mixed fact and law, given the evidence supporting the trial judge’s findings, we do not see a palpable and overriding error.

[8] We make no finding on whether the CCDC head contact between the owner and the defendant ought to have been admitted into evidence. The architect’s authority as payment certifier was never in issue. Rather, the judge found the architect’s evidence less reliable than competing evidence supporting the plaintiff’s case. Whether the contact was in evidence makes no difference because the architect’s evidence was not accepted in any event. Credibility of a witness is within the judge’s purview. Her credibility and reliability findings are supported by her findings about the architect’s relative lack of presence on site to support his conclusions.

[9] Therefore, the appeal is dismissed.

Laferniere J. (Orally):

[10] I have endorsed the appeal book,

“For the reasons delivered by Myers J. the appeal is dismissed, with costs payable by the appellant to the respondent fixed in the sum of $38,698.44, inclusive of disbursements and HST.”

Lafreniere J.

I agree _______________________________

Myers J.

I agree _______________________________

Williams J.

Date of Decision: June 25, 2019

Date of Release: June 27, 2019