Ronald W. Price

This decision addresses prejudgment and postjudgment interest and trial costs following a bifurcated damages trial.

The court determined that the plaintiffs' damages award of $1,083,713.26 for diminution in value and lost rental income should be reduced by $436,892.13 in insurance monies received, resulting in a net damage award of $658,054.28.

Tega's Rule 49 offer to settle for $650,000 plus prejudgment interest (totaling $693,754.79) was found to be more favourable than the plaintiffs' net recovery.

Consequently, the plaintiffs were awarded partial indemnity costs up to the date of Tega's offer (December 29, 2015), and Tega was awarded partial indemnity costs from that date forward.

The court also disallowed expert fees for one of the plaintiffs' experts whose evidence was deemed unhelpful.

The defendant brought a motion to strike the plaintiff’s statement of claim without leave to amend under Rules 21.01 and 25.11 of the Rules of Civil Procedure, arguing the pleading disclosed no reasonable cause of action and constituted an abuse of process.

The defendant alternatively sought further and better particulars of alleged construction delays and related claims.

The court held the statement of claim disclosed a viable cause of action in breach of contract and was not frivolous or vexatious.

Although portions pleading negligence were struck due to contractual limitations restricting claims to breach of contract, the plaintiff was granted leave to amend.

The court also dismissed the request for particulars, finding the information sought was largely within the defendant’s knowledge and amounted to improper attempts to obtain evidence prior to discovery.

The federal Crown brought a motion to strike an action for breach of contract and negligent misrepresentation relating to a construction contract for the replacement of a dam in Quebec.

The court held that the contractual claim arose in Quebec because the project, contract administration, and relevant decisions occurred there.

Although the alleged negligent misrepresentation claim was connected to Ontario because tender documents were obtained and relied upon in Ontario, the contract constituted a complete code governing compensation for extra costs and delays.

Interpreting the contract, the court concluded that the parties had excluded concurrent liability in tort.

As a result, the negligent misrepresentation claim was struck and the remaining contractual claim, which arose in Quebec, could not be heard in Ontario under the Crown Liability and Proceedings Act.

Two non-parties sought costs following a summary judgment motion brought by the defendant seeking dismissal of part of the plaintiff’s claim relating to subcontractors.

The defendant had initially served the non-parties but abandoned the motion as against them shortly before the hearing.

The non-parties argued they incurred preparation costs due to the defendant’s tactical decision to include them.

The court held that it was not inappropriate for the defendant to join the non-parties at the time and noted that the non-parties did not file responding materials or participate in the motion.

In the circumstances, the court declined to award costs against the defendant.

The defendant Crown brought a motion for partial summary judgment seeking dismissal of claims advanced by a general contractor on behalf of subcontractors arising from delays in a federal construction project.

The Crown argued that the subcontractors lacked privity of contract with the owner, that the contractor had not itself suffered damages, and that the claims were barred by limitation periods and lack of contractual notice.

The court held that the contractual scheme contemplated subcontracting and permitted the contractor to pursue delay damages that included sums payable to subcontractors where liability rested with the owner.

The absence of direct contractual privity between subcontractors and the owner was not a bar where the contractor’s contract allowed recovery of such costs and the subcontract conditioned payment on recovery from the owner.

The court concluded that the subcontractor claims raised a reasonable cause of action and that genuine issues required a trial.