ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 60331

DATE: 20151124

BETWEEN:

1528441 Ontario Inc., c.o.b. as Titan Electrical and Control Systems

Plaintiff

– and –

Johnson Controls L.P.

Defendant

Wade Sarasin, for the plaintiff

Kenneth Movat, for the defendant

HEARD: March 26, 27, 2013, April 2, 4, 5, 2013, August 9, 2013, and February 3, 2014

Hockin J.

[1] From the spring, 2007 to the following spring, the Toyota Motor Company, at a site next to highway 401 put up an automotive assembly plant. Its construction proceeded at a quick pace with tight scheduling of the work. This action is a construction lien action which arises from a small but important aspect of the project.

[2] The defendant Johnson Control L. P. (“Johnson”) supplied a control system which automated the temperature control of the plant. The plaintiff 1528441 Ontario Inc. (“Titan”) is an electrical contractor with experience in wiring low voltage conductors. Johnson’s sensors and control panels required such wiring. There were discussions about price in December 2006 and January 2007, and in early April, 2007, Titan entered into six stipulated price sub-contracts with Johnson. Johnson’s system was to be installed in six areas or buildings; this accounts for the number of sub-contracts.

[3] The language of the agreements was the language of the Canadian Construction Association, standard construction document, CCA1, the Association’s form of stipulated or lump sum subcontract. In each agreement, the quoted price became the subcontract price. This is article 5 of each agreement. Each agreement included, as an appendix, Titan’s quote. The subcontract price was the total amount payable subject only to adjustments as provided in the subcontract: clauses 5.2 and 5.4. Four of the six subcontracts pointed out that the quoted price for the work “does not include premium time for labour”.

[4] Titan’s claim is set out in eight invoices which were submitted to Johnson over three months, January, February and March, 2008. They are part of exhibit 4, tabs 6 to 13 and tab 16. The charges fall into two categories. One, Titan advances a claim for labour charges for work performed under the agreement at premium and overtime rates on afternoon and evening shifts and on weekends. Two, it advances a number of claims for “extras” to the subcontracts for costs to Titan for labour and materials which it alleges arose from mistakes by others or from scheduling difficulties.

The premium and overtime claims

[5] Titan’s claim for premium and overtime charges, over the six subcontracts, in total, is $103,776. The total of the six subcontracts is $617,360. This claim would add to the stipulated price, 20 percent.

[6] The cost of labour to Titan increased for the following reasons. The construction schedule was tight. Instructions on the scheduling and management of their work originated with the owner’s general and mechanical foreman. In turn instructions were passed along to Titan by Johnson’s Steiner, Walker and Thirtle. They emphasized the importance of staying on time and to “crew up” or maintain a full complement. In areas of the project where Titan was working, there were other contractors also engaged. They worked at close quarters. There was congestion. Titan found themselves “bumped out of areas by other contractors”. To avoid this, to avoid a penalty under the contract and to keep up, Titan moved away from the day shift to afternoons and evenings and weekends. This attracted payment of a premium or overtime rate to its work force.

[7] Titan’s position is that Johnson knew this from conversations, texts or emails and from the job site reports and deficiency log. These were records kept by Titan’s project manager, Bill Masse. The records indicated whether the shifts worked were regular, afternoon or evenings shifts or weekends. The records, particularly the deficiency log, pointed to the reasons for shifting over from the day shift to premium time. The amount claimed could have been calculated. In any event, it was quantified and claimed in the January, February and March, 2008 invoices and chargeable because four of the six subcontracts made it clear that the prices quoted “did not include premium time for labour”. In that sense, if I understand Titan’s contention, the work which attracted a premium rate was “extra work” to the subcontract price and is therefore recoverable.

[8] Titan argues, in the alternative, that Johnson impliedly or expressly authorized such work. The effect of this submission, it seems to me, is that they entered into a new agreement, one beyond the scope of the written agreement. The new agreement included a promise to pay premium and overtime labour rates.

[9] Johnson’s position is that it did not enter into any such agreement. The work performed by Titan, on shifts which attracted a premium or overtime rate, was work which Titan was obliged to do under the scope of the agreements and was not in any sense “extra work”. No adjustment to the stipulated prices was required. Titan worked when they did, voluntarily, for two reasons. One, they were behind the construction schedule because they were short workers. Two, to avoid a contractual penalty. That this was their decision “was their business”. Finally, Johnson answers the claim by pointing out that any entitlement to an adjustment in the stipulated price under the agreement required, in writing, in some form, notice of the claim and particulars of it within a reasonable period of time. This was Titan’s obligation under clause S.C.C. 6.6, Claims Part 6, of the CCA1, standard form stipulated price subcontract. There was no written notice by Titan.

[10] Titan’s reply is that it relies on the deficiency log as notice of its intention to claim an adjustment. The entries are its detailed account of the amount claimed and the grounds upon which its claim is based. The entries were made contemporaneously with the noted deficiency or complaint. Therefore, there can be no reasonable complaint by Johnson that details of the claim were not submitted within a reasonable time. The 2008 invoices were Titan’s final statement of their accounts and claim.

[11] There is no debate in this case on the scope of the work nor that there was a schedule for completion of the work. There is no debate that the work performed by Titan, whether it was performed on the day, afternoon or night shifts or on a weekend, fell within the scope of work Titan promised to complete for Johnson under its subcontracts.

[12] The question in this case is whether Titan is entitled, in the circumstances, to a recalculation of its stipulated prices.

[13] In my view, if it is, the work must be “extra work”. There is this often quoted definition of the phrase by Matheson J. in Ron’s Trending and Hauling Ltd. v. City of Estevan, (1985) 11 C.L.R. 148 (Sask. Q. B.) at p. 151:

Extra work, entitling the contractor to additional payment, must be work which is substantially different from, and wholly outside the scope of the work contemplated by the contract: Goldsmith, Canadian Building Contracts (3rd ed., 1983), p. 83. Although there appears to be no generally accepted definition of “extra work”, it has been suggested that in a lump sum contract it may be defined as work not expressly or impliedly included in the work for which the lump sum is payable. If work is included in the original contract sum, the contractor cannot recover extra payment for it, although he may not have anticipated that the additional work would be necessary: Keating, Building Contracts (3rd ed., 1969), p. 63.

Keating has also suggested (at p. 62) that, in order to recover payment for work as an “extra”, the contractor must prove: (1) that the “extra” work was not included in the work for which the lump sum is payable; (2) that there was a promise, expressed or implied, to pay for the work; (3) that any agent who authorized the work was authorized to do so; and (4) that any condition precedent to payment has been fulfilled.

[14] The evidence is clear and I find that the work which Titan performed at surcharge rates was contractual work. It was included in the work for which the stipulated price was payable. This was not a cost plus contract. There was nothing in the language of the agreement which allowed for extra labour charges in the circumstances of this case or at all. The claim for this reason fails. In any event, Titan did not comply with the notice provisions of clause S.C.C. 6.6, Claims.

[15] Clause section 6.6 provides as follows:

6.6.1 If the Subcontractor intends to make a claim for an increase to the Subcontract Price, or if the Contractor intends to make a claim against the Subcontractor for a credit to the Subcontract Price, the party that intends to make the claim shall promptly give notice in writing to the other party of intent to claim.

6.6.2 Upon commencement of the event or series of events giving rise to the claim, the party intending to make a claim shall:

.1 take all reasonable measures to mitigate any loss or damage which may be incurred as a result of such event or series of events, and

.2 keep such records as may be necessary to support the claim and afford reasonable access to all books, records, receipts and vouchers to the other party until one year from the date of Substantial Performance of the Work.

6.6.3 The party making the claim shall submit to the other party a detailed account of the amount claimed and the grounds upon which the claim is based. Such details shall be submitted within a reasonable time.

6.6.4 Where the event or series of events giving rise to the claim has a continuing effect, the detailed account submitted under paragraph 6.6.3 shall be considered to be an interim account and the party making the claim shall, at such intervals as the other party may reasonably require, submit further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based. The party making the claim shall submit a final account after the end of the effects resulting from the event or series of events.

6.6.5 The responding party shall reply by notice in writing within 10 Working Days after receipt of the claim, or such other time period as may be agreed by the parties. If such reply is not acceptable to the party making the claim, the claim shall be settled in accordance with Part 8 of the Subcontract Conditions – DISPUTE RESOLUTION.

[16] Titan contends that the sum total of the work site reports, the entries in the deficiency log and the January, February and March, 2008 invoices amounted to notice of its intention to make a claim for an increase in the subcontract price. That is too generous a view of the reports and the log and would amount to an unworkable and chaotic approach to the resolution of claims and disputes on a fast moving, complex industrial construction project.

[17] I am mindful of the reason for strict compliance by this statement of Gibbs J. in Doyle Construction Co. v. Carling O’Keefe, (1987) 1988 2844 (BC CA), 23 C.L.R. 143 (B.C.S.C.) at pp. 158, 159 as follows:

… disposed of. However, there is another defence put forward by Carling O’Keefe under the contract which merits attention as an alternative bar to recovery by Doyle Construction. It is that Doyle Construction did not comply with the notice provisions of the contract.

Hudson, supra, at p. 313, says of notice of provisions:

“Building and engineering contracts frequently contain provisions requiring a contractor to give notice within a reasonable time of events occurring which he considers may entitle him to claim additional payment under the provisions is to enable the employer to consider the position and its financial consequences, and by cancelling or authorising a variation, for example, he may be in a position to reduce his possible financial commitment if the claim is justified, and since special attention to contemporary records may be essential either to refute or regulate the amount of the claim with precision, there is no doubt that in most cases the court will be ready to interpret these obligations of the contractor as conditions precedent to a claim and failure to give the notice may deprive the contractor of all remedy.”

Carling O’Keefe contends that this case is a classic example of why notice conditions should be interpreted as conditions precedent. It was not until the construction was more than half completed that there was any indication that Doyle Construction intended to claim for extra compensation, and even then it was not a notice but a comment made at a site meeting and recorded in site meeting minutes. There was costs until March 27, 1984, and about 2 weeks before substantial completion. Had there been sufficiently timely notice, Carling O’Keefe could have addressed cost reduction measures, could have insisted upon the institution of a cost control system, and could have taken steps to see that all records, including site diaries, were preserved. It was denied that opportunity.

[18] See also Corpex (1977) Inc. v. The Queen in Right of Canada 1982 213 (SCC), [1982], 2 S.C.R. 643 per Beets J. (S.C.C.); and Centura Buildings Systems Ltd. v. Cressey Whistler Project Corp., (2002) 2002 BCSC 1220, 19 C.L.R. (3d) 142 at paras. 30, 31:

30 The notice requirement in GC 22.2 has been judicially considered in two cases in this province: Doyle Construction Co. v. Carling O’Keefe Breweries of Canada Ltd. (1987), 1988 2844 (BC CA), 23 C.L.R. 143 (B.C.S.C.) at pp. 159-60, aff’d (1988), 27 B.C.L.R. (2d) 89 (C.A.) at pp. 103, 110-112, and Foundation Co. of Canada Ltd. v. United Grain Growers Ltd. (1995), 25 C.L.R. (2d) 1 (B.C.S.C.) at paras. 528-530, aff’d on this issue (1997), 1997 4064 (BC CA), 34 B.C.L.R. (3d) 92 (C.A.) at pp. 109-110.

31 In both cases, the trial and appellate decisions held that formal and timely notice of a potential claim under GC 22.2 was a condition precedent to a claim for delay costs. If such notice was not given, the claim was barred. The judgments state that the policy reason for the notice requirement is to prevent prejudice to the party allegedly causing the delay, by alerting it to the difficulties in time for it to take remedial steps.

[19] Finally, and again from Doyle Construction, supra. But from the British Columbia Court Appeal at (1988), 1988 2844 (BC CA), 27 B.C.L.R. (2d) 89 per Locke J. A. on proper notice:

The provision for notice is useless unless it gives some particulars to the owner as to what the complaint is. It must surely also be given in enough time so that he may take the guarding measures pointed out in Corpex if he so desires. An early notice also leaves the owner free to negotiate either under this provision or under any other provision of the contract which may assist in the resolution of the problem. From the standpoint of the contractor, he may not, of course, know precisely what the monetary effect of accumulation of delays might bring about, but an early notification of his concern will also enable him to get himself into a negotiating position as to the method of solution of the problem, and to raise his concerns under the contract.

The grumblings of this contractor, recorded though they may be in site minutes, display no intention to claim until December, 1983. Even then, no claim was actually advanced, but intent was indicated. But no details were given: an owner would be hard put to know exactly what it is to meet, and hence what it is to do. The purpose of the notice is to give the owner an opportunity of considering his position and perhaps taking corrective measures, and he is prejudiced by not being able to do it.

[20] I find that Titan failed to deliver a written notice of its claim for extra labour charges as required by S.C.C. 6.6. It is a condition precedent to the remedy sought, a readjustment of the price of the contract. I add this. It is not the case that Titan was unfamiliar with the procedure to adjust price. There are many references in the documents to change orders and there is exhibit 5 where overtime rates were recovered on a change order.

[21] I return to Titan’s contention that Johnson expressly or by conduct, impliedly agreed to pay the labour surcharge. There is no support for this position in the evidence. The opposite is true. From the examination-in-chief of Joseph Yurek, Titan’s owner:

Q. Did you have any discussion specifically with anyone at Johnson Controls about additional shifts or overtime work during the course of the project?

A. Yes.

Q. And who would that have been…?

A. Dave Steiner.

Q. And what discussions did you have with Mr. Steiner?

A. I told him that the project was very congested and a lot of people and we were always getting forced out of our areas where we were working, and the only way to complete the project in time was to add another – add guys on an afternoon shift to get in there to do the work.

Q. Would Johnson Controls, would they – wouldn’t they have only wanted you to work the usual shift so that additional costs (not) incurred for time and a half?

A. Um, he didn’t care. He just wanted the work

Q. Okay. And he meaning Mr. Steiner?

A. Dave Steiner. Yes.

[22] Again from Mr. Yurek’s examination-in-chief:

MR. SARASIN: Q. Did Johnson Controls know you were working afternoons and weekends?

A. Yes.

Q. How would they know?

A. I’d inform them

Q. How did you inform them?

A. Um, I believe we had a discussion, especially the weekend. We worked there because of the situation of a – paint was behind because of the strike with the equipment operators and stuff, the ground being uneasy, and we had to maintain schedule and I said I’d put guys in there on the weekend to get it done.

Q. You said that to who?

A. I believe it was Dave Steiner I had that conversation with.

Q. And where was this conversation? When did it – where did it take place and when did it take place?

A. Um, I’m not sure when. I believe it would be on the phone.

Q. And what was the response, if any Mr. Steiner made to your statement that you were going to put workers on weekends and afternoons?

A. Um, I guess, I guess it was just do whatever it takes to get the job done.

Q. But did Johnson Controls, Mr. Steiner, or anyone at Johnson Controls say that they would pay for that?

A. No. It was all on Titan.

Q. Did they say it would be on Titan before you actually went ahead and put those workers on afternoons and weekends?

A. Um, no, I don’t, I don’t believe so. I don’t know when that said.

[23] From the examination-in-chief of Johnson’s David Steiner:

Q. What is your recollection at the outset of the project, was there any discussion regarding regular time or premium time?

A. No, at the beginning of the project, it was assumed that the project would be properly manned and premium time wouldn’t be required.

Q. O.K., what’s your understanding about what happened on the Weld project in terms of Titan using its forces do you have a recollection?

A. Yeah, the Titan forces were working in the daytime, and they would complain that they weren’t getting enough work done, so it was their opinion that going to the night, the evening shift would help them increase their productivity which was fine with me because I was at – I needed to meet a schedule as they had to meet a schedule, and if that got them to meeting the schedule, then that was – that was fine.

Q. Did you ever tell Titan that they must go to the afternoon schedule?

A. No, it was Titan and myself, it would be Bill Masse would review Titan’s progress and if they weren’t meeting the progress that was required, they would have to come up with a way to get themselves back on schedule and make sure that they met any of the milestones within the project.

Q. Do you have a specific recollection at all of any discussions regarding a decision to move men to that afternoon shift?

A. No, I don’t think there was any discussion on it. I think in my telling Titan – reviewing the schedule that that was their opinion on how they would meet the schedule, but I mean, it’s not a – it was never a Johnson decision on how they employed their manpower. I could only look at it, and make my suggestions that either it looked like we could maintain the schedule, or we couldn’t, and if they couldn’t, they would have to come up with a schedule or a way to meet the schedule, because we were all under contract to meet the schedule.

[24] And again from his examination-in-chief:

Q. Would you agree that the definition of premium time would include any premium time over and above the quoted hourly rate of $65 per hour per worker?

A. Where do I see that it’s $65 per hour per worker?

Q. How much were you paying a regular hour per worker to Titan?

A. I wasn’t. I would get a quoted price.

Q. So it would depend on the circumstances?

A. Yes.

Q. Is that correct?

A. Correct.

Q. And would the circumstances include when Johnson Controls requires or consents to Titan having an afternoon, nightshift or some other shift where there’s a premium time amount?

A. No, not necessarily.

Q. So you’re saying it would include time in which Johnson Controls either instructs, agrees or directs Titan to work afternoon or nightshifts?

A. Correct.

Q. Would it work in some of those circumstances, would that be premium time?

A. It would not. If we had requested it, I would say it would be premium time. If the contractor has done it on his own, then I would say it’s not.

[25] And still from his examination-in-chief:

MR. STEINER: This entry, yes.

THE COURT: So you know its premium time?

MR. STEINER: Well, again I’m saying that that is not even – yes, we know about premium time and the discussion was something else. If the premium time is to do extra work – or sorry, if it’s to do extra work, fine, charge premium time, but if it’s to do the work you already contracted to do and you’re falling behind, then I don’t consider that my premium time to me.

[26] And finally from Mr. Steiner’s cross-examination:

MR. SARASIN: Q. And it’s fair to say that you didn’t tell them not to work on these overtime hours, right? You didn’t tell Titan not to…

A. I didn’t tell them to.

Q. ...put five electricians on that Saturday?

A. Johnson Controls didn’t tell them to work overtime, Johnson Controls gave them many emails telling them they were behind the schedule, they had to catch up and put a plan together. If that meant they wanted to do that, then that’s fine, but again, the reasons for it, you know maybe they – the issue of why they had to do it, I could have been self-inflicted and now all the sudden they want overtime to fix their own issues. I mean, it’s not really for me. All’s I said is, it’s been identified by contractors that Johnson Controls is behind, Titan present a plan that’s gonna get you back on schedule, and are the issues yours, is the issues because you don’t have enough manpower. I mean, whatever, you’re behind schedule. You took on a contract you said you could perform, and you’re not performing, so how are we getting back on schedule, and it’s not for John – the cost doesn’t’ go back to Johnson Controls for those issues.

[27] I am not unmindful that in Titan’s correspondence to Johnson with its quote that Titan mentioned that the price did not include premium time for labour. This did not, however, change the essential nature of the agreement, that Johnson expected the work to be done, on time, for the stipulated price. It did not, for example, allow Titan unilaterally, without a change order to the subcontract, to change the agreement to a costs plus arrangement or oblige Johnson, without consultation, to pay amounts outside the agreement. That required of Titan resort to the claims or change order process. This was known to Titan. On July 19, 2007, Titan’s project manager, Bill Masse, corresponded with Titan’s Joseph Yurek as follows:

From: Bill Masse [bmasse@titanecs.com]
Sent: Thursday, July 19, 2007 6:53 PM
To: Joe Yurek
Subject: Toyota Afternoon Shift

Use it if you want. Put your name at the bottom.

Dave,

Due to a lack of cooperation by the other trades on-site, site conditions and the counter productive unsafe nature of the various building in Toyota, Titan will be forced to run a full-time afternoon shift. The project is well behind schedule as a result of circumstances completely out of Titan’s control. If Titan is going to be expected to meet Kanban schedules an afternoon shift for all workers will be the only means. In saying that, in order for Titan to run an afternoon shift a 25% Premium will need to be paid to all union workers. As per Titan’s quote letters there was no premium time carried in our pricing. Is Johnson Controls willing to pay the premium time in order for the schedules to be met? Is this something Johnson Controls can hope to be reimbursed for by the Generals or Toyota?

Without running an afternoon shift work during the day at this point is nearly pointless until the floors are poured and we have access to all areas of the plant. Please advise.

Regards,

Bill Masse
Vice President
Titan Electrical & Control Systems

[28] The relevance of this document is that Mr. Yurek knew from his project manager that the shift premium was not in Titan’s price and that it would have to look up the contractual ladder to Johnson and through Johnson above for relief. That meant compliance with the usual process set out in the agreements. In any event, as the evidence quoted above confirms, Titan knew Johnson’s position, that it would hold Titan to its prices under the agreements.

[29] Counsel for Titan in his supplementary written crossing submissions cited the case of 2016637 Ontario Inc. (c.o.b. Balkan Construction) v. Catan Canada Inc., 2013 ONSC 4727, 26 C.L.R. (4th) 84 (Ont S.C.J.) as standing for the proposition that an owner may be obliged to pay for “extras” where the owner expressly or impliedly instructs the contractor to do the work. That is not the case here for the reasons given. This is not an “extras” claim. It is the case, as well, that in Balkan, Justice Broad found that since the subject matter of claim, the electrical work, fell outside the fixed price agreement, the claim could be advanced on a new agreement on a “cost plus” basis. It is quite a different case than this case. The owner in Balkan was the owner of a home which required some work on two floors. It was a consumer type of case and not a case of two sophisticated contractors on a complicated construction site governed by the language of standard form construction contracts.

[30] The situation Titan found itself is described well by Professor Goldsmith from his text, Goldsmith on Canadian Building Contracts, 4th edition, Carswell, 1988 at pp. 4-2:

Under a lump sum contract the contractor agrees to carry out all the work involved in the construction of the work for a fixed lump sum. In this respect he takes a calculated risk that the actual amount, and the cost to him, of the work to be carried out may be more than he anticipated; but irrespective of the actual amount of work involved, he must perform the whole of the work, in return for which he is entitled to receive the whole of the price agreed upon, but no more. Often such contracts provide for a contingency allowance, i.e., a sum which the contractor is required to add to the estimated cost to cover any unforeseen contingencies that may arise.

In the absence of any changes or extras, the contractor is not entitled to any additional payment over and above the lump sum price, even if it transpire that the amount of work which actually has to be carried out is substantially more than anticipated. On the other hand, if the construction can be properly completed with the carrying out of less work than anticipated, the contractor is nevertheless entitled to the whole of the contract price.

[31] For those reasons, the claim was not a claim for extras. There was no claim or notice of claim made. There was no express or implied agreement to alter the stipulated prices. The claim for overtime and premium time is dismissed.

Claim for ‘other’ extras

[32] The balance of the claim is for work and materials supplied by Titan to correct problems which it alleges were caused by other contractors, general and subcontractors, which fell to Titan to correct. They are described in exhibits 1A and 1B, exhibit 4 and the Scott Schedule, a useful summary prepared by counsel for Titan. The work in each case but one is work which was not an “extra” but work which was necessary if Titan was to complete the project. It may be fair to describe it as “additional” work but it was not an “extra” which would attract a change order or directive. If Titan’s view was that others were responsible or they were entitled to an adjustment, steps should have been taken under the dispute resolution process provided for in Part 8 of the agreement or by claim under S.C.C. 6.6.

[33] Had there been timely notice and resort to the agreement, Johnson may well have settled directly with Titan or Johnson could have taken steps to involve others above and below Johnson in the contractual ladder where they had caused or contributed to the additional work. The purpose of clause 6.6 and Part 8 is to enable the parties to resolve a dispute as it arises when the reason for the dispute is fresh in their minds and open to a solution or a summary adjustment. Failure to give notice, as noted above, is a bar to recovery; timely notice is a condition precedent. The practical effect of advancing a claim in its final invoices of January, February and March 2008 was that it deprived Johnson of the benefit of a timely resolution of these matters when the others who might have contributed were close at hand. They are now gone.

[34] Titan includes in its claim for extra work, its cost to install additional conduit and wire for the relocation of valves to enhance their service ability. This was done at the behest of the mechanical contractor, Roberts. The amount of the claim is $24,340 and is almost entirely for labour. It is the case, however, that with Johnson’s encouragement and consent, Titan entered into an agreement with Roberts which ended Johnson’s responsibility.

[35] There should be specific mention of Titan’s claim of $29,950 for its cost to change the conduit in the weld department from half inch to three quarters inch. The view of Titan was that half inch was acceptable, and it may well have been, but the specification called for three quarter inch. The specification governs.

The Counterclaim

[36] The counterclaim is based on the sum negotiated by Johnson with its general contractor, W. S. Nichols for the claimed back charge by Nichols for its cost to connect Johnson’s control system to the utility buildings’ 120 volt grid. Nichols took the position that the120 volt connection fell within the scope of its contract with Johnson. At the time, Titan had taken an adversarial position with Johnson; this action had been commenced and a lien registered. It was Johnson’s decision to negotiate on the figure claimed, $96,000, accept the back charge and let it “flow down” to Titan. The figure settled upon by Johnson with Nichols was $48,536.47 and in due course a change order was prepared in that amount which represented a credit to Nichols in Johnson’s final account on the project. This is tab 24 of exhibit three.

[37] The counterclaim assumes that the 120 volt connection was part of the scope of work Titan accepted for the utility building.

[38] In my view, after a study of the evidence of Mr. Yurek and Mr. Maynard, Johnson has not satisfied me there is any evidence that Titan’s scope of work included high voltage work. Mr. Yurek’s evidence, which I accept, is that Titan’s work was all low voltage work or downstream from the main panels. The counterclaim is dismissed.

[39] Exhibit 6 is an accounting counsel have agreed to subject, of course, to adjustment to reflect these reasons. If I am wrong on this or counsel wish to return to complete the arithmetic to achieve a final figure, arrangements can be made anytime through the office of the trial co-ordinator, Ms. Beattie.

[40] I will receive submissions on costs, as counsel may agree, in written form or in court.

[41] These reasons follow the direction of Grace J. as explained in his direction to counsel under s. 123 of the Courts of Justice Act after the retirement of Bryant J.

“Justice P.B. Hockin”

Justice P. B. Hockin

Released: November 24, 2015

COURT FILE NO.: 60331

DATE: 20151124

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

1528441 Ontario Inc. c.o.b. as Titan Electrical and Control Systems

-and-

Johnson Controls L.P.

REASONS FOR JUDGMENT

HOCKIN J.

Released: November 24, 2015