Overview

[1] The defendant, Attorney General of Canada, brings a motion for summary judgment seeking dismissal of the plaintiff's claim.

[2] 1n 2011, Public Works and Government Services Canada, now Public Services and Procurement Canada (PSPC), awarded the plaintiff Elite Construction Inc. the Contract to construct a new 96-cell unit and related infrastructure ("the Project") within Collins Bay Correctional Institution, a federal maximum security facility in Kingston, Ontario.

[3] The Contract, awarded after a public tender process, required the successful proponent to adhere to a set of provisions incorporated into the Contract, including those pertaining to Delays and Extension of Time, and Dispute Resolution.

[4] The Contract, worth $16,899,000 for the original scope of work, envisaged a completion date of November 30, 2013, but work continued past that date and the Project reached the stage of Substantial Performance for occupancy and use on February 15, 2015. Ultimately, Elite was paid approximately $18.2 million for the original work plus approved Change Orders.

[5] On June 29, 2016, Elite commenced an action seeking damages of approximately $4.1 million in respect of alleged delays and extra work in completing the project. On October 4, 2017, Elite amended its claim, adding $500,000 in aggravated, exemplary and punitive damages. Canada filed its defence on October 31, 2017. Canada filed its motion for summary judgment on February 7, 2020.

[6] Canada submits that large public works projects like the Collins Bay upgrade are funded by the Canadian taxpayer. Contractors know that they must strictly adhere to the contractual requirements for giving notice about claims for additional payment based on delays and/or completion of extra work. Canada asserts that Elite did not provide proper notice and brought its claim for additional compensation months, and in some cases years, after the alleged delays occurred, and after the alleged extra work was performed. Additionally, Canada asserts that the alleged extra work was work that was required within the original scope of the Contract, therefore no further compensation is payable. Canada submits that summary judgment should be granted since the material facts are not in dispute, and the long-established case law is strongly in its favour.

[7] Elite disagrees and submits that it provided the required notice or, in the alternative, Canada waived strict compliance of the Contract by its dilatory conduct throughout the Project. Elite asserts that Canada's position is hypocritical, insisting on strict contractual compliance from Elite, but simultaneously conducting itself outside the terms and conditions of the Contract. Elite submits that the complex facts and technical nature of the claim require a trial, and that Canada's motion for summary judgment should be dismissed.

[8] For the reasons that follow, I find that Canada's motion for summary judgment should be granted, with costs of $62,964.06 awarded on a partial indemnity rate.

The Facts

[9] The facts are largely not in dispute. They were summarized at paragraph 6 of Canada's factum based on Elite's response to a Request to Admit which admitted the following facts:

(1) On November 17, 2011, PSPC awarded Contract N. EQ734-120613/001/PWL to upgrade the Collins Bay Maximum Security Correctional Institution to Elite, for a total estimated cost of $16,899,00.00 plus GST.

(2) The Contract's completion date was set for November 30, 2013.

(3) NORR Engineering ("NORR") was the engineering firm responsible for design phase services adapting prototype documents to the latest codes and the building location, and project-related services for the construction phase.

(4) The Contract identified the following documents, among others, as incorporated by reference into and forming a part of the tender and Contract:

(a) General Provisions (GC1) (R2810D, 2011-05-16);

(b) Administration of Contract (GC2) (R2820D, 2011-05-16);

(d) Allowable Costs for Contract Changes under GC 6.4.1 (R2950D) (2007- 05-15);

(e) Dispute Resolution (GC8) (R2882D, 2008-12-12); and

(f) Drawing and Specifications.

The Contract was a "Lump Sum Arrangement" for payment for the Work (which, pursuant to General Condition ("GC") 1.1.2.1, means "everything that is necessary to be done, furnished or delivered by the Contractor to perform the Contract in accordance with the contract documents"), with no Time and Material component.

(5) There were 27 Change Orders issued on the project.

(6) Elite has been paid $18,208,9446.81 for its Work on the Project, breaking down as follows:

• $16,899,000.00 for work included in the original scope of the Contract; and

• $1,309,946.81 for Change Orders.

(7) On January 24, 2014, ("January 2014 Claim Letter") Elite submitted a claim for alleged extra work done on the project.

(8) An interim Certificate of Substantial Performance was created on July 31, 2014.

(9) The Project reached Substantial Performance for occupancy and use on February 15, 2015, after a period of 170 weeks. PSPC made further payment of remaining holdback on March 30, 2015.

(10) On May 5, 2016, Elite delivered a report written by Driver Global Construction Consultancy titled "Report on Extension of Time and Additional Costs Incurred by Elite Construction Inc. Project - Collins Bay Institution, Building CBB11, 1455 Bath Street, Kingston Ontario" (the "Driver Report") which contained Elite's claim for extra costs associated with alleged delay and extra work related to the Contract.

(11) The Driver Report claimed that Elite was owed $4,165,772.77 in "Additional Compensation" under the Contract.

(12) The Driver Report was the source of the quantum of damages claimed by Elite in its Amended Statement of Claim.

(13) On May 26, 2016, Michael Purcell, department representative for PSPC, sent a letter to Enrico Lisi, President of Elite, acknowledging receipt of Elite's May 5, 2016 claim and outlining that it could take PSPC up to a year to analyze the claim and make a decision.

(14) Elite ultimately only submitted six Requests for Extras ("RFEs") to PSPC for consideration for payment under GC 6.4.2. These six were as follows:

RFE-01 - Subsurface Excavation and Backfill

RFE-02 - Wall/ceiling Finishes to Inmate Cells and Ranges

RFE-03 - Formwork Ties

RFE-04 - Painting of cell furniture

RFE-06 - Extra work done by Elite - Third party contractor on-site

RFE-07 - 2nd Floor Ceiling Sealing

[10] On June 29, 2016, Elite filed its statement of claim in the within action.

[11] In a decision letter almost a year later dated June 16, 2017 from Michael Purcell, PSPC's Project Manager, Canada refused compensation in respect of Elite's RFE-01 (Sub-soil Conditions), RFE-03 (Formwork Ties), RFE-04 (Painting of Detention Furniture) and RFE-06 (3rd Party Damage).

[12] On July 7, 2017, Elite's counsel responded to Purcell's decision letter and formally requested negotiation under clause GC 8.4 (Negotiation) of the Contract. Elite's counsel also provided Elite's position with respect to the four RFEs referenced in Purcell's June 16, 2017 decision.

[13] Purcell issued a second decision letter, dated July 24, 2017, which refused compensation with respect to Elite's RFE-02 (Concrete Finishing) and RFE-07 (2nd Floor Ceiling Sealing).

[14] Elite is no longer pursuing its claim for RFE-06.

[15] On October 5, 2017, Elite's counsel formally requested mediation in accordance with GC 8.4.3 acknowledging that both parties agreed that negotiations were at an end. In the same correspondence, Elite's counsel enclosed Elite's amended statement of claim which added $500,000 in aggravated, exemplary and punitive damages.

[16] Purcell issued a third decision letter dated September 28, 2017 in which Canada refused Elite's claim for additional compensation related to delay.

[17] Canada filed its statement of defence on October 31, 2017.

[18] Elite has not requested a Certificate of Final Completion with respect to the Contract on the basis that it has not been paid in full.

Admissibility of Driver Report

[19] Canada raised an objection to the admissibility of the Driver Report.

[20] Canada submits that although Elite tendered the Driver Report as an expert report, Elite failed to abide by the expert evidence rules in the Rules of Civil Procedure, RRO 1990, Reg. 194. Further, Canada submits that, even as a non-expert report, the Driver Report should not be admitted as it constitutes inadmissible hearsay evidence.

[21] Elite's President, Enrico Lisi, was Elite's affiant on the summary judgment motion. At paragraph 9 of his affidavit, he states, with respect to the Driver Report, that "This expert report is attached hereto and marked as Exhibit 'C'". At paragraph 65 of his affidavit, he again refers to the Driver Report as an expert report. Elsewhere, at paragraph 66, he described the Driver Report as "Claim preparation assistance - Driver Trett Canada Ltd.: $152,762.50."

[22] Notably, the Driver Report states, in its "Mandate":

Driver Trett Canada Ltd. ('DT') has been engaged by Elite Construction Inc. ('Elite') to provide an independent impartial report on the entitlement of extension of time and associated costs incurred by Elite whilst undertaking the construction of the Collins Bay Institution, Kingston, Ontario. In order to conduct its review, DT has reviewed the project documentation provided by Elite which has been used to form an opinion with respect to the basis of entitlement, causation and quantification of the additional cost incurred, relating to the Collins Bay Institution, Kingston, Ontario.

The opinions, findings and conclusions expressed in this report are based on discussions with Elite staff and based upon knowledge and experience of the undersigned and should not be considered a legal opinion.

[23] Rule 53.03 of the Rules of Civil Procedure requires a party who intends to call an expert witness at trial to provide a report signed by the expert regarding the expert's qualifications, employment and educational experience in his or her area of expertise, and an acknowledgment of expert's duty (Form 53). Elite suggests that, because the Driver Report is not being used for a trial, Rule 53.03 does not apply. However, under Rule 39.01(7), opinion evidence provided by an expert witness for the purpose of a motion or application shall include the information listed under subrule 53.03(2.1). Accordingly, Rule 53.03 applies, albeit indirectly, and here, the author of the Driver Report did not provide this information. Moreover, Elite's characterization of the Driver Report as "Claim Preparation Assistance" undermines any suggestion that the author is neutral as between the parties, which is required of an expert. Finally, and most obviously, the Driver Report was expressly not written as a legal opinion. Accordingly, I find that the Driver Report cannot be considered admissible as an expert report.

[24] That still leaves the question of whether the Driver Report should be admitted as a consultant's report. Canada points out that Mr. Lisi simply appended the Driver Report as an exhibit to his affidavit. Elite responds that, at the beginning of Mr. Lisi's affidavit, he has the usual verbiage about "where I have obtained information from others, I have stated the source of that information and I verily believe that information to be true." I take it that Mr. Lisi would identify the author of the Driver Report as the source of his information and adopt the contents of the Driver Report to be true.

[25] In the circumstances, I am prepared to accept the Driver Report as a consultancy report commissioned by Elite to assist it in determining its position in this claim. I do not accept it as an "independent, impartial" report akin to an expert report, although I accept that the author is an outside consultant who has analyzed the documentation made available to him by Elite and provided his consultant's view of Elite's claim.

[26] I note that, at paragraph 70 of its factum, Elite confirms its position that Driver is not a participant witness, which I take to mean a proposed witness at trial. I do not find that this precludes Elite from relying on the Driver Report in this motion. In any event, if I am incorrect and the Driver Report is not admissible on this summary judgment motion, nothing turns on it as the Driver Report would not have made a difference to my analysis or decision on the motion.

Merits of the Summary Judgment Motion

[27] In the action, Elite's amended statement of claim seeks damages on the basis of negligence, breach of contract and, in the alternative, quantum meruit and unjust enrichment. Elite's main claims fall into two categories, delay and extra work.

[28] Under delay, Elite claims that it spent an additional 315 days on the Project, from the original contact completion date of November 30, 2013 to the second date of substantial completion, February 15, 2015, and that it should be compensated for its additional costs. Under this category are Elite's claims associated with Change Orders, Shop Drawings and its Requests for Information (RFIs).

[29] Under extra work, Elite claims that it performed extra work outside the scope of the contract for which it has not been compensated. At the time of Canada's summary judgment motion, five of Elite's RFEs, namely RFE 01, 02, 03, 04, 07, and Elite's claim in respect of Additional Bonding work remain in dispute.

[30] Elite also requests compensation for a claim brought by one of its subcontractors, Urban Electrical Contractors.

1. Canada's position on the summary judgment motion

[31] Canada submits that the determination of this action is amenable to summary judgment since the material facts are not in dispute, and the legal principles of contractual interpretation for standard form construction contracts are well established and in its favour.

[32] Canada submits that Elite is barred from bringing this action as it did not comply with the notice provisions in the Contract, and that Elite has already been paid for work that it now characterizes as extra work.

a) Canada's position re: Elite's claim based on delay

[33] Canada notes that the Contract contains General Conditions and Clauses GC1 to GC10 that Elite was obliged to follow. In particular, GC 6.5 governs Delays and Extension of Time. The full text of GC 6.5 can be found as Appendix A to these reasons.

[34] GC 6.5.3 states:

Subject to paragraph 4) of GC6.5, no payment, other than a payment that is expressly stipulated in the Contract, shall be made by Canada to the Contractor for any extra expense, loss or damage incurred or sustained by the Contractor due to delay, whether or not the delay is caused by circumstances beyond the control of the Contractor.

GC 6.5.4 states:

If the Contractor incurs or sustains any extra expense or any loss or damage that is directly attributable to any neglect or delay that occurs after the date of the Contract on the part of Canada in providing any information or in doing any act that the Contract either expressly requires Canada to do or that would ordinarily be done by an owner in accordance with the practice of the trade, the Contractor shall give Canada written notice of intention to claim for that extra expense or loss or damage within ten working days of the date the neglect or delay first occurred. (emphasis added)

GC 6.5.8 states:

If the Contractor fails to give a notice referred to in paragraph 4) and a claim referred to in paragraph 5) of GC6.5 within the times stipulated, an extra payment shall not be made to the Contractor in respect of the occurrence.

[35] Canada also submits that the Contract's specifications required Elite to submit a detailed schedule for its work using the Critical Path Method, and Elite's delay claim did not demonstrate any delays to the Critical Path. The Critical Path is the longest sequence of activities in a project plan which must be completed on time for the project to be completed by the due date. An activity on the Critical Path cannot be started until its predecessor activity is complete. For example, if an activity on the Critical Path is delayed by a day, the entire project will be delayed by a day, unless time is made up.

[36] Canada submits that, as of the original Project completion date of November 30, 2013, Elite had submitted invoices that described 97.3% of the original Contract work as complete. Only seven tasks on the Critical Path remained to be completed and this work was supposed to take five weeks to complete, but was not actually completed until January 2015. Moreover, all of the monthly schedules provided by Elite from the Contract commencement date to just one month before the Contract completion date showed that the work would be completed either early or on time. The monthly schedules did not show any delay in the Project. Canada contends that this demonstrates there was no critical delay caused by Canada in the Project.

[37] Canada points out that GC 6.5.1 provides that before the Contract completion date, a Contractor can apply for an extension of time of the completion of the contract, if causes beyond its control have delayed completion. GC 6.5.2 requires requests for extensions of time to be accompanied by written consent of the bonding company providing the bond for Contract security. Here, Elite only initiated two requests for extensions of time: one, on March 27, 2013, asking that the Contract completion date be changed from November 1 to December 1, 2013; and a second, on February 7, 2014, indicating that Elite would be submitting an extension of time.

[38] Canada does not accept these as legitimate requests for extensions of time under the Contract. The first was not accompanied by the required written consent of the bonding company, and the second was after the Contract completion date. As discussed below, the parties disagree whether Elite actually submitted an Extension of Time on Contracts form with respect to its second request for extension.

Change Orders

[39] A Change Order is work that is added to or deleted from a contract's original scope of work, which alters the original contract amount and may or may not alter the completion date. There were 27 Change Orders issued on the Project. The process which culminated in a Change Order typically began with a Contemplated Change Notice (CCN) issued by Canada detailing the required change in work. Elite was then asked to provide a quote for the change in the work. Elite responded with a Contemplated Change Notice Summary (CCN Summary) that identified the impact, if any, on the schedule and the cost. Once the parties had negotiated an acceptable price of the change in work, Canada issued a Change Order setting out the work to be done and compensation to be paid. Once issued, a Change Order constituted a decision of Canada and an amendment to the Contract.

[40] In the Change Order, Canada did not make reference to Elite's CCN Summary or the Summary's description of delay and cost.

[41] Canada submits that Elite did not provide notice, pursuant to GC 6.5.4, within 10 days of any Change Order, that it intended on seeking additional compensation; nor did Elite provide a Notice of Dispute within 15 days of the Change Order as required by GC 8.3 (Dispute Resolution). Canada disagrees that Elite's CCN Summary, which includes the estimate of delay therein, constitutes the GC 6.5.4 Notice required by the Contract.

[42] Canada submits that under GC 6.4.1 (Price Determination Prior to Undertaking Changes), Elite was required to include all claims for compensation for "cost of labour, Plant and Material that is required for the change as agreed upon in writing by the Contractor and Canada plus an allowance for supervision, co-ordination, administration, overhead, margin and the risk of undertaking the work within the stipulated amount". Canada submits that this provision precludes Elite from claiming extra compensation for Change Orders since the negotiated price of the Change Order incorporates the risk of Elite incurring further costs. Canada submits that, since it has fully paid Elite for all Change Orders, no further compensation is due.

[43] Canada emphasizes that the Contract is a "Lump Sum Arrangement" with no Time and Materials component. The only available compensation was through the original amount or as negotiated through the Change Orders, regardless of whether the Change Orders did or did not result in delay. Exceptionally, additional compensation may have been available if Canada had determined under GC 6.5.7 that a claim by Elite under GC 6.5.4 was justified. Of course, Canada’s position is that Elite never made a valid GC 6.5.4 claim. In any event, Canada points out that none of the 27 Change Orders impacted the Critical Path and, in most cases the work could be done at the same time as the original contract work.

Shop Drawings and Requests for Information (RFIs)

[44] Canada rejects Elite's claim for compensation in respect of Canada's delay in responding to shop drawings or Elite's RFIs. Canada again points to Elite's failure, under GC 6.5.4, to provide notice within 10 days of the date of Canada's alleged neglect or delay.

(b) Canada's position re: Elite's claim based on the RFEs, Bonding and Subcontractor Claim

[45] Elite claims additional compensation for alleged extra work in relation to RFEs 01, 02, 03, 04 and 07.

[46] Canada responds that, with respect to RFEs 01, 03, and 07, Elite did not provide the 10-day notice required under GC 6.5.4 of its intent to claim extra compensation for alleged delay, loss or damage. In any event, Canada disagrees that, on their merits, any of Elite's RFEs deserve compensation since the alleged extra work done was work required under the Contract and was not, in fact, extra; or that it was work done to remediate problematic work and, as such, no further compensation was justified.

[47] Elite claims compensation for bonding which Elite had to obtain to cover the additional time it required to finish the Contract. Canada was invoiced for the additional bonding on January 13, 2015 and Elite first brought a claim for additional bonding in May 2016. Canada rejects the claim on the basis of Elite's failure to give notice under GC 6.5.4.

[48] On August 26, 2014, Elite received a claim from one of its subcontractors, Urban Electrical Contractors. Elite did not advise Canada of the claim until May 5, 2016. Once again, Canada rejects the claim based on the lack of notice under GC 6.5.4. and that Elite failed to provide substantiation for the Urban Electrical Contractors as required by the Contract.

[49] To avoid duplication, I will provide Canada's detailed response to the RFEs, Bonding and Subcontractor claim in my Analysis section below.

2. Elite's position on the summary judgment motion

[50] Elite disagrees that this case is appropriate for summary judgment as the facts and law are in dispute about Elite's alleged lack of notice, Canada's waiver of strict compliance with the Contract's terms, and Elite's RFEs.

[51] Elite submits that a large construction project like the Collins Bay upgrade has "many moving pieces" with the trades and representatives of Elite and Canada in constant communication. It is only when there is a breakdown in communication and that an item in dispute is crystallized that it makes sense for Elite to put Canada on notice. To suggest that a clock starts ticking on a particular date and runs out after 10 days per GC 6.5.4. is to take matters out of context.

[52] Elite submits that the Project went longer than planned as a result of Canada's delays associated with the Change Orders. Elite alleges that Canada delayed in issuing Change Orders once Elite provided its CCN Summary, and that the Change Orders themselves delayed the completion of the Project.

[53] Elite submits that it provided notice under the Contract via:

(a) its CCN Summaries which identified delay;

(b) various emails to NORR advising that NORR’s delays in responding to CCNs and RFIs were unacceptable, and that delays on the project would be incurred as a result;

(d) its two requests for extension of time dated March 27, 2013 and February 3, 2014;

(e) its letter dated January 8, 2016, "Report on Extension of Time and Additional Costs";

(f) its submission of the Driver Report dated May 5, 2016; and

(g) its counsel's letters dated July 7, 2017 and October 5, 2017 in response to Canada's Decision letters.

[54] In the alternative, Elite submits that Canada waived strict compliance of the Contract by its dilatory conduct throughout the Project. Elite states that Canada failed to comply with GC 1.5, "Time is of the essence". Elite relies on Colautti Construction Ltd. v. Ottawa (City of), 1984 CanLII 1969 (ON CA), 46 O.R. (2d) 236 (C.A.), a case where the City of Ottawa could not rely on the strict provisions of the contract to escape liability for the contractor’s additional costs.

[55] Elite complains that while, in select cases, Canada responded to contemplated changes by issuing Change Orders in a timely manner, the majority of Change Orders were approved months, and in some cases, more than a year after Elite's submission of quotation. This strongly contributed to the delay for which Elite now seeks compensation. Moreover, Canada failed to acknowledge Elite's two requests for Extension of Time (March 2013, February 2014), and only issued Decision Letters three and a half years later in 2017. Canada's three Decision Letters responded belatedly to Elite's request for compensation in respect of RFEs from January 24 and April 25, 2014.

[56] In the further alternative, Elite submits that an additional reason not to summarily dismiss its action is that it is based on principles of quantum meruit and unjust enrichment.

3. Analysis

(a) Is this action amenable to disposition by way of summary judgment?

[57] Although Elite maintains that this action requires a trial, it did not strongly pursue this argument at the hearing. Elite's main arguments were directed as to why Elite, not Canada, should prevail in the action. But for one contested fact, whether Elite submitted a second Extension of Time Request Form, there are no material facts in dispute. Both parties presented extensive material on the motion and there are no issues requiring a trial. I find that the action can be disposed of by way of summary judgment: Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

(b) Did Elite comply with the terms of the Contract, in particular the notice provisions?

(i) Elite's requests for an extension of time

[58] I find that Elite did not properly request an extension of time to complete the Contract.

[59] GC 6.5 (Delays and Extension of Time) has 8 paragraphs. The first two paragraphs, GC 6.5.1 and GC 6.5.2, set out provisions for a Contractor to notify Canada that it intends on making a request for an extension of time to complete the work. The remaining six paragraphs, GCs 6.5.3 to 6.5.8, set out provisions where the Contractor has incurred an extra expense, loss or damage attributable to Canada’s neglect or delay for which the Contractor intends to seek compensation, beyond what has been provided in the Contract.

[60] Elite's first extension of time request, submitted on an "Extension of Time on Contracts" form dated March 27, 2013, did not comply with the Contract as, contrary to GC 6.5.2, it was not accompanied by the written consent of the bonding company. In any event, the first request only asked for the Contract to be extended by 30 days from the then "Current Completion Date" of November 1, 2013 to December 1, 2013. Canada did not respond to this extension request. The Completion Date under the Contract was November 30, 2013 so, even if granted by Canada, the first extension would have only provided Elite with an additional day to complete the Work.

[61] Elite claims that it submitted a second Extension of Time on Contracts form on February 3, 2014. This form was disclosed for the first time in a Supplementary Affidavit of Elite's President. Apparently, there was a mix-up and Elite's lawyers had previously disclosed a similar form, but pertaining to the Frontenac correctional institution. Canada denies having ever received Elite's February 3, 2014 Collins Bay extension form and no cover letter or email was produced in respect of this form.

[62] In any event, Elite's second extension form asked for an extension of time from the then "Current Completion Date" of November 1, 2013 to June 30, 2014. This request does not comply with GC 6.5.1 as requests for extension of time can only be made "before the date first fixed for completion of the Work" which, in this case was November 30, 2013.

[63] I note that Elite's (per George Riopelle) February 7, 2014 email to Canada stated that Elite would be submitting an extension of time request, yet this was after Elite's President Enrico Lisi purportedly submitted his February 3, 2014 Extension of Time on Contracts form. Whether I accept one or both of Elite's February 3 or February 7, 2014 extension requests as having been received by Canada, they were sent to Canada after the November 30, 2013 Completion Date under the Contract and therefore, pursuant to GC 6.5.1, they cannot be accepted.

[64] More to the point, even if Canada had granted Elite an extension of time under GC 6.5.1 and GC 6.5.2, the extension by itself would not have led to Elite receiving additional compensation. As I read the Contract, the only two ways that Elite could have received additional compensation beyond the original $16.9M amount were through securing a Change Order that comes with additional compensation (not every Change Order does), or through Elite sending a GC 6.5.4 Notice that resulted in Canada making an "extra payment" under GC 6.5.7 in an amount calculated in accordance with GC 6.4 "Determination of Price".

(ii) Did Elite give Canada notice under GC 6.5.4?

[65] A line of cases comprising Corpex (1977) v. The Queen in Right of Canada, 1982 CanLII 213 (SCC), [1982] 2 S.C.R. 643, Doyle Construction Co. v. Carling O’Keefe Breweries of Canada Ltd., 1988 CanLII 2844 (BC CA), 27 B.C.L.R. (2d) 89 (C.A.), and Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597, has discussed the importance of enforcing notice provisions in construction contracts.

[66] In Corpex, the plaintiff contractor sued the government for the additional costs arising from a mistake as to soil conditions. The trial judge’s decision was overturned by the Federal Court of Appeal on the basis that Corpex had failed to give notice as required by a notice clause (Clause 12) in the General Conditions of the contract. On further appeal to the Supreme Court of Canada, Beetz J., writing for the court, emphasized that a notice provision is of benefit to both contractor and owner since the parties can focus on the immediate dispute and adjust their positions while the rest of the work in the contract continues:

A clause like clause 12 of the General Conditions eliminates or at least reduces the problems mentioned above, resulting from a significant mistake as to the nature of the soil. However, by enabling the parties, for all practical purposes, to renegotiate the contract or part of the contract on the terms which it stipulates, or to demand that it be renegotiated, it of necessity excludes annulling the contract for mistake, one of the effects of which would be to prevent such renegotiation. One of its objectives is to avoid interrupting the work and encourage its completion.

Both the contractor and the owner derive some benefit from such a clause.

The contractor is practically certain of being compensated for additional costs either during the work or later, if he complies with the provisions of clause 12, and in particular, if he gives the notice provided for in that clause. He enjoys much greater protection than that afforded by contracts such as those in question in R. v. Paradis & Farley Inc., supra, and Atlas Construction Co. v. City of Montreal, supra.

An owner who is thus informed of a mistake as to the nature of the soil knows that the contractor will probably not drop his claim, and he is enabled to reconsider his position. He can in practice be assured that the work will go forward if he wishes, but clause 19 of the General Conditions also enables him to unilaterally rescind the contract. He may conclude another agreement with the same contractor or some other. If he prefers for the work to continue under the new circumstances, he may make arrangements to monitor quantities and costs of additional work so that the payments due the contractor under clauses 44 to 46 of the General Conditions can be made.

The practical effect of the notice would appear to be to place the parties in the position they enjoyed at the time of the bid.

However, once the work is complete, a contractor cannot claim in a court of law benefits similar to those which clause 12 would have guaranteed if he has not himself observed that clause and given the notice for which the clause provides. Otherwise, he would be depriving the owner of the benefits which he is guaranteed by clause 12: at pp. 664-665.

[67] The courts in Corpex and Doyle Construction held that the Notice Provision can bar a contractor who fails to give notice from making a claim even though the Notice Provision does not contain a “failing which” clause. In other words, compliance with a notice provision is a condition precedent to maintaining a claim in the courts.

[68] In Technicore, the Court of Appeal for Ontario held that failure to provide notice within the time stipulated by the contract served as a bar to the contractor’s action, and that an owner does not need to prove prejudice in order to rely on failure to comply with the notice provision as a bar to the claim: Technicore, at paras. 28 and 47.

[69] Based on the above case law, and moving to the question of whether Elite complied with the notice requirement in GC 6.5.4, I find that Elite's position is untenable since each document that Elite relies on for notice is problematic in terms of GC 6.5.4 compliance.

[70] Elite's CCN Summaries, which follow Canada's issuance of a CCN, do not qualify as notices required by GC 6.5.4. The CCN Summaries, and the delays indicated therein, are Elite's predictions of how much longer certain work would take to complete, whereas GC 6.5.4 requires the Contractor to have already incurred or sustained an extra expense, loss or damage attributable to Canada's neglect or delay and then, within 10 days of the neglect or delay, to notify Canada.

[71] It would make no sense for Elite's CCN Summaries to constitute GC 6.5.4 Notices since the process culminating in a Change Order already provides compensation based on an amount negotiated between the parties. Granting Elite's interpretation of CCN Summaries as also constituting GC 6.5.4 Notices could lead to double recovery for Elite: once based on the additional amount owing to Elite via the Change Order; and again, counting the CCN Summary as a GC 6.5.4 Notice.

[72] Canada points out, and I agree, that the logical time for Elite to have filed a GC 6.5.4 notice would have been within 10 days of Canada's issuance of a Change Order. This would follow from Elite's claim that Canada's delay or neglect in issuing Change Orders, or the impact of the Change Orders themselves had an economic impact on Elite that was not accounted for in the price of the Contract or the Change Order. Yet, Elite provided no such notice within 10 days of any Change Order.

[73] I also find that Elite never issued a Notice of Dispute under GC 8.3 with respect to any of the Change Orders withing 15 days of their issuance.

[74] As for Elite's claim that its various emails to NORR about NORR's delays could constitute GC 6.5.4 Notices, Elite did not make reference to any specific email that would qualify as a GC 6.5.4 Notice; nor did Elite suggest that it provided such an email to NORR within 10 days of NORR's purported delay or neglect. To the extent that Elite claims that emails found at pages 698 through 701 of its record constitute GC 6.5.4 Notices, I disagree, as the emails do not necessarily refer to Canada's delay or neglect. Instead they refer to the Change Order process and/or are untimely.

[75] As for Elite's January 24, 2014 and April 25, 2014 letters, the former was sent in respect of alleged "extra work completed on the project … which has been completed (in most cases long ago)" and for which Elite requested Change Orders. The latter was a follow up letter. Neither letter suggested that Canada's delay or neglect was the basis of Elite's request for additional compensation. The reference to "in most cases long ago" undermines Elite's claim that it sent out these letters within 10 days of the date of Canada's purported delay or neglect.

[76] Even if I were to accept that Canada received Elite’s two requests for extension of time dated March 27, 2013 and February 3, 2014, I cannot accept them as GC 6.5.4. Notices. It is true that at the bottom of each Extension of Time on Contract form, Elite ticked off the box stating "There will be additional cost as a result of this extension" However, Elite's request remains one related to an extension of time to complete the contract, not a request for additional compensation related to neglect or delay on Canada's part. It would be incongruous for Canada to design and make a form available for "Extension of Time on Contracts" (as contemplated by GC 6.5.1 and GC 6.5.2), only to have it double as a GC 6.5.4 Notice.

[77] I see Extension of Time requests, and GC 6.5.4 Notices, as two different things that serve two different purposes even though both arise under GC 6.5. I agree with Canada that Extension of Time requests must be made before the completion date of the Contract, whereas GC 6.5.4 Notice are not bound by this restriction.

[78] Finally, I do not see how Elite's letter dated January 8, 2016, "Report on Extension of Time and Additional Costs", the Driver Report dated May 5, 2016, or Elite's two counsel letters dated July 7 and October 5, 2017, can be considered as GC 6.5.4 Notices. They were all submitted months or years after the work in question was completed.

[79] It is telling that none of the documents Elite claims as GC 6.5.4 Notices explicitly mentions this provision of the Contract. Yet, other provisions of the Contract are cited within Elite's documentation. It would have been a straightforward matter for Elite to state explicitly that it was putting Canada on notice, under GC 6.5.4, that Elite intended to make a claim. At the point of giving notice, the provision does not even require the Contractor to detail the claim. That comes later, under paragraph 6.5.5.

[80] Parenthetically, I note that even if Elite had given Canada GC 6.5.4 Notice, it would not necessarily result in Canada granting Elite additional compensation. Under GC 6.5.5, Elite would have to provide Canada with a written claim no later than 30 days after the date that a Certificate of Completion is issued; and, under GC 6.5.7, Canada would have to determine that Elite's claim is justified and an amount of payment would have to be calculated in accordance with GC 6.4 "Determination of Price". Here, I find that Elite did not make a GC 6.5.4 Notice, and that Elite never requested, nor did Canada issue, a Certificate of Completion.

[81] I find therefore that Elite did not provide written notice to Canada under GC 6.5.4 that it intended to claim for any extra expense, loss or damage that it incurred or sustained. As such, under GC 6.5.3 and GC 6.5.8, Elite's claim for additional compensation is barred.

[82] In Technicore, the Ontario Court of Appeal relied on the Supreme Court of Canada’s decision in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 SCR 490, to set out the definition of waiver:

Waiver occurs when one party to a contract (or proceeding) takes steps that amount to foregoing reliance on some known right or defect in the performance of the other party. It will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of the deficiency that might be relied on and (2) an unequivocal and conscious intention to abandon the right to rely on it. The intention to relinquish the right must be communicated. Communication can be formal or informal and it may be inferred from conduct. The overriding consideration in each case is whether one party communicated a clear intention to waive a right to the other party: at para. 63.

[83] Elite argues that Canada cannot rely on the terms of the Contract as Canada has waived strict compliance with the Contract though its dilatory conduct.

[84] Elite argues that Canada has not itself complied with GC 1.5, which states that “Time is of the essence to the Contract”.

[85] Elite also points to the “extensive time periods” between issued CCNs and corresponding approved Change Orders. Similarly, Elite points to the long delay between its requests for extension of time (March 2013, February 2014) / RFEs (January 24, 2014 and April 25, 2014) and Canada’s Decision Letters (June, July and September 2017).

[86] Finally, Elite suggests that Canada permitted it to do work beyond the terms of the Contract without an issued Change Order, which Elite characterizes as another example of Canada waiving the strict terms of the Contract.

[87] Elite relies on the Colautti decision, where the Court of Appeal held that Ottawa was not entitled to rely on the strict terms of the contract given its own conduct. Elite argues that the present case is akin to Colautti, and distinguishable from Technicore where the parties meticulously followed the strict requirements in the governing contract.

[88] Canada responds to the waiver argument by submitting that Elite has failed to point to anything in Canada’s conduct that would demonstrate Canada’s clear intention to waive Elite’s compliance with the contract.

[89] On the issue of its alleged non-compliance with GC 1.5 “Time is of the Essence”, Canada responds that such a general “boiler plate” provision and its alleged transgression by Canada cannot be converted into Canada’s waiver of a specific contractual obligation by Elite such as the GC 6.5.4 Notice provision.

[90] Canada also relies on GC 1.12.2 which states:

The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the right thereafter to enforce such provision. Nor shall the waiver by either party of any breach of a covenant, term or condition hereof be taken to be held to be a waiver of any further breach of the same covenant, term or condition.

[91] I agree with Canada’s position on waiver. Elite has not satisfied its burden of demonstrating that Canada had a full knowledge of some deficiency that might be relied on by Elite, an unequivocal and conscious intention to abandon the right to rely on it, and that Canada, by its conduct, communicated this to Elite.

[92] First, while I understand that Elite may have been frustrated with Canada’s failure to respond as quickly as Elite wanted, I do not find that Canada’s dilatory conduct breached any contractual term. In fact, Elite acknowledges this at paragraph 106 of its factum:

While the contract binding the parties does not specify a timeline for which Canada is required to respond to RFIs, issue COs, and respond to extension of Time request, and claim letters from Elite, Canada failed to adhere to GC 1.5 of the contract binding the parties.

[93] I agree with Canada’s argument regarding GC 1.5 “Time is of the essence”, and find that this general provision and its alleged transgression by Canada cannot be relied upon to find that Canada waived reliance on a specific notice requirement in the Contract, namely GC 6.5.4.

[94] I also find that the present case falls in line with Technicore, and is distinguishable from Colautti where waiver was found. The court in Technicore stated:

[66] Colautti Construction is a very different case from the present one. In Colautti Construction, the plaintiff contractor entered into a contract with the defendant city for the construction of a sanitary sewer. The contract stipulated that written authorization was required for additional charges. Nonetheless, at various different times over the course of the project, the contractor billed the city for significant extra charges and the city paid them, despite the absence of written authorization. This court held that the parties had varied the terms of the contract by their conduct and the city could not rely on the strict provisions of the contract to escape liability for further additional costs.

[67] In the present case, there is no pattern of conduct by the parties over the course of the Contract demonstrating that they did not intend to be bound by the Notice Provision. Far from ignoring the relevant provisions in the Contract, the parties acted in compliance with its terms. GC 3.14.03.01 required Clearway to give notice of any situation that might lead to a claim for additional payment. The affidavit evidence shows that Clearway did this. Further, as we have seen, the Notice Provision required Clearway to give a detailed claim after completion of the work affected by the situation. Clearway did that, by delivering its March 2007 Claim. As for the City, GC 3.14.03.05 required that it advise Clearway, in writing, within 90 days of receiving the detailed claim, of its opinion of the validity of the claim. This the City did by means of its letter dated April 4, 2007, which denied the March 2007 Claim. There is no pattern of conduct by the parties that had the effect of varying the terms of the Contract.

[95] Here, Canada has never paid Elite for work that was not in the Contract or a Change Order. Canada has also never paid Elite on the basis that the Work continued beyond the original Completion date of November 30, 2030.

[96] In response to Elite’s argument that Canada permitted it to do work beyond the terms of the Contract without an issued Change Order, Canada disagrees and states that, far from this being work done without Canada’s approval, this work was subject to a pre-approval via a Contract Amendment Management form. I agree. Accordingly, this cannot constitute an example of Canada permitting Elite to do work outside of the Contract or Canada waiving its rights under the Contract.

[97] In sum, I find that Canada has not waived its rights under the Contract. And given my earlier finding that Elite never submitted a valid GC 6.5.4 notice, any elements of Elite’s action where notice was required but not given must be dismissed. This includes Elite’s claims associated with Change Orders, Shop Drawing, RFIs, Additional Bonding Work and the Urban Electrical Contractors claim.

[98] As the lack of GC 6.5.4 notice also applies to some of Elite’s RFEs, I turn next to that aspect.

(d) Elite’s RFEs

[99] On January 24, 2014, Elite submitted a claim for alleged extra work done in respect of four items. Then, on April 25, 2014, Elite sent another letter outlining that in fact there were 9 items (which includes the previous four) for which Elite had done extra work. Subsequently, the list of 9 items was narrowed down to 6 RFEs.

[100] On June 16 and July 24, 2017, by way of its Decision Letters, Canada rejected Elite’s claim for compensation for these RFEs.

[101] For the reasons that follow, I find that Canada was justified in rejecting Elite’s claim for compensation for the RFEs. I will briefly outline my reasons with respect to each RFE.

[102] Elite did not provide written notice under GC 6.5.4 of its intent to claim extra compensation in relation to RFEs 01, 03, or 07. I find that the lack of notice is a sufficient basis to deny Elite’s claims for those RFEs on the motion. However, I will nevertheless provide merits-based reasons for why Elite’s claim for these RFEs should be rejected.

RFE-01 - Subsurface Excavation and Backfill

[103] Elite requested additional compensation for removal of non-compactable soil to an acceptable level and backfilling the excavated area with granular B material. The excavation took place from January to May of 2012.

[104] RFE-01 is unique among the disputed RFEs in that the related work is associated with a Change Order, namely Change Order 017. The alleged extra work by Elite claimed in respect of the other RFEs is not the subject of any Change Orders. RFE-01 is also unique in that there is a specific GC, namely GC 6.2 (Changes in Subsurface Conditions) that applies to it.

[105] In its Decision Letter, Canada denied Elite’s RFE-01 claim on the basis that Change Order 017, which had been issued in December 2013, had already compensated Elite for all excavation related costs. Canada’s position is that, per Change Order 017, Elite was paid an additional $190,381.40 and is not entitled to further compensation with respect to the same extra work.

[106] Canada also rejects Elite’s RFE-01 claim on the basis that, after Elite received Change Order 017, Elite did not provide a Notice of Dispute within 15 days in accordance with GC 8.3, the Dispute Resolution provision of the Contract. As Elite does not deny this fact, I find that the Contract bars Elite from proceeding with this aspect of its claim.

[107] On the merits of the RFE-01 claim, Elite claims that Change Order 17 did not adequately compensate Elite. However, Canada argues and I find that Elite provided no new or additional information to support its claim under RFE-01 other than what it provided when negotiating the price for Change Order 17. Accordingly, even on the merits, Canada was justified in denying RFE-01.

RFE-02 - Wall/ceiling Finishes to Inmate Cells and Ranges

[108] Elite claims for extra work it performed in respect of finishing range walls and ceilings to the correct specification. In this case, Canada concedes that Elite met the GC 6.5.4 notice requirement but denied Elite’s claim for this extra work on its merits.

[109] Canada states that Elite initially implemented the wrong finishing according to the relevant specification and then, in remedying the work to the right finishing specification, used a finish (“Mapei Tilt finish”) that was more costly and labour intensive than anticipated. Canada claims that it did not direct Elite to use this finish and is not responsible for Elite’s extra cost. Canada relies on GC 3.4.3 (Contractor shall be responsible for construction means, methods, techniques, etc.). Canada also argues that Elite’s President Mr. Lisi admitted on cross-examination that Elite could have submitted products other than Mapei Tilt Finish for Canada’s review, but did not.

[110] Elite did not dispute these facts and, in the circumstances, I find that Canada’s decision to deny the claim based on RFE-02 is justified.

RFE-03 - Formwork Ties

[111] Elite claims that Canada instructed it to remove, grind, drill and epoxy inject all formwork ties beyond the standard break off point provided by the manufacturer and that this work was not required as part of the original specification. Canada responds that it instructed Elite to remedy deficient work and accordingly, no compensation is owed.

[112] Without delving into an extensive explanation of what this RFE-03 dispute entailed, it is evident based on the motion materials that Elite read the specification one way (the diameter of a hole, but not its depth, had to be 25mm), whereas Canada read the specification another way (the depth of a hole had to be 25 mm). In cross-examination, Canada put it to Elite’s President that the relevant specification also referred to a Canadian Standards Association (CSA) specification which was incorporated by reference into the Contract. The CSA specification required a hole of 15mm and Elite’s President acknowledged that “we read the specification, we didn’t clearly see that it was cut back there, unless you follow the path down two further bullet points to the CSA standard to say go find it under falsework over here.” Ultimately, as a compromise, and in light of the CSA standard, Canada issued site instructions whereby Elite was to grind 7 mm off the formwork ties (leaving 13 mm of tie in the hole, instead of an empty 25 mm hole) and apply a coating to the end of the tie to prevent corrosion.

[113] I find that Elite’s work associated with RFE-03 is remedial because Elite did not initially follow the appropriate specification which included the CSA standard. In any event, Canada’s position, which represented a compromise and therefore less work for Elite than remediating up to the original 25mm hole requirement, was reasonable.

RFE-04 - Painting of cell furniture

[114] Elite claimed additional compensation for work that it claimed was additional to the Contract, namely painting cell furniture with a powder coat paint after it initially delivered the furniture with a red steel primed paint. Elite claimed that it delivered the furniture without powder coating it because, as a result of welding, the powder coating would be damaged and impossible to remedy.

[115] Canada explained that the specification required Elite to deliver the furniture with a power coat finish except in areas to be welded and that Elite did not follow this instruction. I find, based primarily on the cross-examination of Elite’s President, that Elite decided not to follow the specification, believing that it would damage the furniture. Accordingly, I find that when Canada required Elite to meet the specification, it cannot be considered an extra and Canada was justified in rejection this claim.

RFE-07 - 2nd Floor Ceiling Sealing

[116] Elite was directed to seal cracks in a 2nd floor ceiling by way of a site instruction. Canada took the position that Elite’s claim for extra compensation ought to be rejected because, while Canada directed Elite to seal the cracks, it did not direct Elite how to do this, and Elite elected to seal the entire slab, not just the cracks, and then claim the additional work as an extra.

[117] The cross-examination of Elite’s President indicates that Elite’s own Engineering firm recommended that cracks be sealed but did not differentiate between “through cracks” and “hairline cracks”. Elite chose to fix the cracks by sealing the entire slab. However, I find that Elite was not able to demonstrate that Canada, or any specification, directed this more extensive form of remediation. Accordingly, the extra work cannot be attributed to a direction from Canada and be compensated for.

(e) Quantum Meruit and Unjust Enrichment

[118] Elite argues, in the alternative, that its claims based on delay and for the RFEs are justified on the basis of quantum meruit and unjust enrichment.

[119] For quantum meruit, Elite submits that the additional services it performed were services furnished at the request, or with the encouragement or acquiescence of Canada in circumstances that render it unjust for Canada to retain the benefit conferred by the provision of services: Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2007 ONCA 324, at para. 99.

[120] With respect to unjust enrichment, Elite submits that the circumstances satisfy the well-known legal test: (i) the defendant (Canada) has been enriched by the plaintiff (Elite); (ii) the plaintiff has suffered a corresponding deprivation; and (iii) there was no valid or “juristic” reason for the defendant to keep the benefit without payment: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 3.

[121] I find that Elite’s arguments based on quantum meruit and unjust enrichment fail for the same basic reason. Here there was a contract, the lump-sum Contract with very specific terms that Elite was required to comply with. In support of its quantum meruit argument, Elite cited Stevens & Fiske Construction Ltd. v. Johnson (1973), 1973 CanLII 2319 (NS SC), 9 N.S.R. (2d) 608, but as that case makes clear, quantum meruit is not available where, as here, there is an agreement with regards to payment. Similarly, with respect to unjust enrichment, Elite’s argument fails because the Contract supplies the “juristic reason” for Canada to insist that Elite complete the work to specifications without additional compensation: Kerr v. Baranow, at para. 41.

Conclusion

[122] Elite was required to put its best foot forward on this summary judgment motion brought by Canada. Its argument that a deeper dive into the evidence would reveal the elusive GC 6.5.4 notice that it purportedly sent must be rejected. The “grumblings of a contractor” are not sufficient to constitute notice: Northland Kaska Corp. v. R., 2001 BCSC 929, at para. 61. The purpose of the notice period benefits both parties but importantly gives the owner the opportunity to determine its options. Canada did not waive its rights under this lump-sum contract. Elite was, in fact, paid approximately $16.9M for the original scope of work and an additional $1,309,946.81 for Change Orders. It is not surprising that, if Elite was entitled to more compensation, it would have to adhere to the contractual provisions set out in the public-tender contract for this large scale project. Canada was able to demonstrate that there is no issue requiring a trial and the action should be dismissed.

Costs

[123] Canada has been entirely successful on the motion and is entitled to its costs. Canada submitted a Costs Outline requesting $62,964.06 in costs, on a partial indemnity scale, based on $43,872.58 for the motion, and $19,091.48 for the action.

[124] Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43 provides that a judge has the discretion to award costs for a motion. The discretion is subject to the Rules of Civil Procedure. Rule 57.01 of the Rules lists several factors that the court may take into consideration in determining costs.

[125] In deciding costs, the overall objective is to fix costs in an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (On CA), 71 O.R. (3d) 291 (C.A.) at para. 24.

[126] Canada seeks costs on a partial indemnity scale of 60% of full indemnity costs, which is what is generally awarded.

[127] Canada’s Costs Outline provides a breakdown of the fees (based on the hours spent) and the disbursements incurred. I find Canada’s counsel’s rates and the number of hours spent to be reasonable. One indication that Canada’s costs of $43,872.58 on the motion were reasonable is that Elite’s comparable costs for the motion were $46,703.58, based on Elite’s Bill of Costs. I also find Canada’s disbursements to be reasonable.

[128] Based on the Rule 57.07 factors, I find as follows:

(a) Amount sought and recovered: Elite’s action was for over $4 million plus interest and costs. Canada’s motion for summary judgement disposed of the entire action and Canada’s costs are proportionate to the significant amounts that were at issue.

(b) The importance of the issues: The litigation was important to both parties. Elite sought to recover what it considered to be its costs associated with delay and additional work. Canada sought to defend the contract and claims process that it used for large public infrastructure projects such as the Collins Bay upgrade.

(c) The complexity of the proceeding: The action and the motion for summary judgment were factually and legally complex. The motion materials were voluminous, there was full cross-examination and extensive written and oral argument. The claims and defences were of a highly technical nature requiring detailed familiarity with the facts. The law encompassed principles of contract, waiver, quantum meruit and unjust enrichment.

(d) Whether any step was improper or unnecessary: The proceeding was made more complex by Elite’s improper insistence that the Driver Report was an expert report.

[129] I find that there is no reason to alter Canada’s reasonable request for costs. Accordingly, I order that Elite pay Canada’s costs in the amount of $62,964.06 within 30 days of the release of these Reasons.

Pinto J.

Date: January 22, 2021

Appendix "A"

GC6.5 (2008-05-12) Delays and Extension of Time

Upon application of the Contractor made before the date first fixed for completion of the Work or before any other date previously fixed under this clause, Canada may extend the time for completion of the Work by fixing a new date if Canada determines that causes beyond the control of the Contractor have delayed its completion.
The Contractor's application shall be accompanied by the written consent of the bonding company whose bond forms part of the Contract Security.
Subject to paragraph 4) of GC6.5, no payment, other than a payment that Is expressly stipulated in the Contract, shall be made by Canada to the Contractor for any extra expense, loss or damage incurred or sustained by the Contractor due to delay, whether or not the delay is caused by circumstances beyond the control of the Contractor.
If the Contractor incurs or sustains any extra expense or any loss or damage that is directly attributable to any neglect or delay that occurs after the date of the Contract on the part of Canada in providing any information or in doing any act that the Contract either expressly requires Canada to do or that would ordinarily be done by an owner in accordance with the practice of the trade, the Contractor shall give Canada written notice of intention to claim for that extra expense or loss or damage within ten working days of the date the neglect or delay first occurred.
When the Contractor has given a notice referred to in paragraph 4) of GC6.5, the Contractor shall give Canada a written claim for the extra expense, loss or damage no later than 30 days after the date that a Certificate of Completion is issued and not afterwards.
A written claim referred to in paragraph 5) of GC6.5 shall contain a sufficient description of the facts and circumstances of the occurrence that is the subject of the claim to enable Canada to determine whether or not the claim is justified and the Contractor shall supply such further and other information for that purpose as Canada may require.
If Canada determines that a claim referred to in paragraph 5) of GC6.5 is justified, Canada shall make an extra payment to the Contractor in an amount that is calculated in accordance with GC6.4, "Determination of Price''.
If the Contractor fails to give a notice referred to in paragraph 4) and a claim referred to in paragraph 5) of GC6.5 within the times stipulated, an extra payment shall not be made to the Contractor in respect of the occurrence.

Elite Construction Inc. v. Canada, 2021 ONSC 562

Case Summary

Overview

The Facts

Admissibility of Driver Report

Merits of the Summary Judgment Motion

1. Canada's position on the summary judgment motion

a) Canada's position re: Elite's claim based on delay

Change Orders

Shop Drawings and Requests for Information (RFIs)

2. Elite's position on the summary judgment motion

3. Analysis

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3