COURT FILE NO.: CV-19-527-00

DATE: 2024-02-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Finn Way General Contractor Inc.

M. Marrie, S. Molu for the Plaintiff

Plaintiff

• and -

Lakehead University

J. Lester, N. Wainwright for the Defendant

Defendant

HEARD: May 15-18, 2023, at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

REASONS FOR JUDGMENT

OVERVIEW:

[1] This case is about when and how various costs associated with project delay should be billed to the owner in the context of a fixed price construction contract.

[2] The Plaintiff, Finn Way General Contractor Inc. (“Finn Way”) argues that the Defendant, Lakehead University (“LU”), is required to compensate it for site costs and other costs it incurred as a result of delays, at no fault of Finn Way, during the construction project known as the Centre for Advanced Studies in Engineering and Science (CASES)

[3] It is undisputed that the CASES project had an initial timeline of 13 months. Because of design issues and owner-directed changes, it took approximately 6 months longer than expected to finish. As a result of the project’s extended duration, Finn Way incurred additional costs for items such as insurance, supervision, and site office costs. Finn Way’s subcontractor also incurred additional costs, which as of the date of trial Finn Way had not paid and the subcontractor had not pursed payment of from Finn Way. In total, Finn Way claims $226,480.92 plus interest and costs on account of these additional costs.

[4] Finn Way argues that its Change Request Forms pertaining to the events that contributed to the delay, constituted notice of delay as well as notice for the potential for additional claims, which could not be quantified until the project was nearing substantial completion at which time the cost of the cumulative delay would be known. Finn Way submits that it is entitled to be paid its reasonable costs of the delay.

[5] LU denies that any amount is due and owing to Finn Way on account of the delay. LU takes the position that in this fixed price contract, there was a process for dealing with such additional costs and any disputes, which Finn Way did not follow. In the event relief from forfeiture is granted, LU argues that Finn Way has been paid in full for all that it was entitled to under the contract and the Change Orders. Finn Way did not include these extension costs, nor did it give any indication in the negotiated Change Orders that there would be any additional costs billed at a later date. Finn Way’s actions are contrary to the requirements and spirit of a fixed price contract.

[6] For reasons that follow, the action is dismissed.

FACTS:

[7] On February 13, 2017, Finn Way and LU entered into a standard CCDC2 form of contract (the “Contract”). The Contract sets out the scope of work to be performed for the CASES project, and the terms under which the parties agreed that the work was to be performed. The Contract was for a fixed price of $18,180,000. The initial contract time required that substantial performance be achieved by March 31st, 2018.

[8] Administration of the Contract was to be performed by a consultant. The consultant, Cory Stechyshyn, was the architect who had designed the project, and was the principal of Cory Stechyshyn Architect Inc. (o/a i4architecture). Mr. Stechyshyn testified for the Defendant at trial [“Stechyshyn” or the “Consultant”].

[9] The role of the Consultant was to administer the Contract in accordance with the CCDC2 provisions. This involved ensuring that the “Contract Work” was being performed, dealing with required changes to the Contract and to the scope of the work, acting as a liaison between LU and Finn Way and to resolve differences between the parties regarding Contract interpretation, its application, or its administration, and dealing with progress payments. Importantly, the Consultant was tasked with ensuring the Contract Work continued in order to prevent delays arising out of any disputes between the parties. This explanation may be overly simplistic and is not intended to be inclusive of all the Consultant’s responsibilities.

[10] Also involved in the project was CBRE, a project management team. The representative of CBRE involved with the project was James McKillop (“McKillop”), the Project Manager. Hugh Briggs, Director of Physical Plant at LU (“Briggs”) testified that LU had a large number of projects happening at the same time and did not have the ability to perform project management services in-house. McKillop was also a witness called by the Defendant at trial.

[11] When any issues or changes arose in the project, the Consultant made recommendations to the Project manager, who in turn made recommendations to LU.

[12] For Finn Way, Michael Karimi (“Karimi”) testified. He is an engineer employed by Finn Way. He was involved in making estimates for the project and in the general project management once the Contract was awarded. He dealt with this project daily for the duration of the Contract and was Finn Way’s representative dealing with the Change Orders and Change Request Forms.

[13] Karimi testified that in bidding for the Contract, the bid was based on Finn Way incurring site costs for the project for 13 months. Site costs include items such as on-site supervisors, site housekeeping, the requirement of a site office, fencing, and insurance. The longer they are on-site, the more Finn Way incurred these costs.

[14] As with many construction projects, issues arose that necessitated changes to the contract price and time. As a result, substantial performance was not complete until September 27, 2018, being six months after the date contemplated by the Contract. This meant that Finn Way had site costs for six months more than anticipated.

[15] It is not disputed that Finn Way incurred these extra costs and that the extra time required to complete the Contract was reasonable and agreed upon.

[16] Forming part of the Contract were “General Conditions of the Stipulated Price Contract” (the “GC”). Part 6 of the GCs provided for changes in the work, which could happen either through a Change Order or a Change Directive. If the parties agreed upon changes in price, the method of calculating price, and time for completion of the Contract, it would be recorded in a Change Order (“CO”) and the work would proceed accordingly. If the parties to the Contract could not agree on any of these terms, in order to avoid delays while additional time and price are being determined, GC 6.3.1 provided that the Consultant shall issue a Change Directive directing that the proposed change in the work would continue.

[17] There were five COs for additional work that Finn Way points to as causing delay to the project that contributed to the dispute between the parties. These COs or other documents relating to them are specifically referred to in Finn Way’s claim for extension costs. The COs were prepared based on Change Request Forms that were prepared by Finn Way, setting out the additional cost associated with the extra work. The Change Request Forms also provided for the estimated change in Contract time. The relevant COs are as follows:

a. Change Order 5 (“CO5”), issued April 25, 2017, pertained to work associated with a new library sanitary manhole not contemplated in the Contract. On or about April 24, 2017, Finn Way submitted a Change Request Form seeking approval for an increase in the contract price of $32,342.20, and for the time for completion to be extended by 7 days. Karimi testified that the addition of this item to the Contract delayed the performance of other work. The Change Request Form contains the Consultant’s comments, which were added by the Consultant after the form was submitted. The Consultant determined that the costs were reasonable, but that the extension in time was not required. CO5 was issued approving an increase in the Contract price by $32,342.20 to complete the work, with no increase in time. The CO was signed by the Consultant and the Owner representative, but not Finn Way.

Karimi testified that he disagreed with the Consultant’s determination that 7 extra days were not required. He testified that work was at a standstill until the CO was issued, thereby delaying the progress of the project. While the Project Manager sent an email authorization to proceed with work pending receipt of the CO, it was the same day as the CO was received. The actual delay was known. Karimi further testified that the Change Request Form constituted notice to the Consultant of delay to the project. There was no evidence that Karimi’s understanding was communicated to the Consultant.

b. Change Order 65.1 (“CO65.1”) was issued October 31, 2017. It was required to address a design error that caused structural steel overhangs to sag and twist. The error became evident in September, and Karimi’s evidence is that Finn Way was unable to proceed with the Contract work until this issue was resolved. A course of action to rectify the problem became known and Finn Way submitted its Change Request Form on October 31, 2017. The Change Request Form sought an additional $62,767.75 to be added to the price of the Contract, with an additional 62 days in time required to perform the Contract work. The CO was issued by the Consultant on October 31st, 2017, and was approved by the Owner on November 2nd. The CO approved the addition to the contract price but there was no comment made as to the additional time sought to complete the Contract. Finn Way did not sign the CO.

The evidence of Karimi is that the changes approved by CO65.1 delayed the original completion date for the roofing work. The Contract had been bid by Finn Way with an estimated start time of August 28th for this work, and completion time of October 6, 2017. This was also the basis on which Finn Way’s subcontractor, Cardinal Roofing & Sheet Metal Inc. (“Cardinal”) had bid on the project. Because of the delays associated with the redesign to address the sagging issue, work could not be completed on the roof until November. This triggered cold weather protocols for installing the roofing, and there were days during which winter weather conditions either slowed or prevented work. The net effect is that the roofing took longer to complete.

On November 23rd, 2017, Cardinal submitted a quote to Finn Way for its delay claim arising from the later than anticipated roofing work. The quote was for $40,800 plus HST. This quote had not formed part of the costs anticipated by CO65.1.

On November 24th, Finn Way submitted a Request for Information (RFI) to the Consultant requesting a “PCN” [Proposed Change Notice] be issued to cover the cold weather delay costs associated with the roofing work (which delay arose from the sagging beam issues). Finn Way attached the manufacturer technical bulletins to support its claim that the cold weather impacted gluing timeframes. Finn Way also indicated that labour time had to be doubled because the cold weather only allowed for approximately half of the roofing time each day.

On December 15, 2017, the Consultant responded to Finn Way’s RFI, noting that pursuant to the terms of the Contract an RFI did not constitute “notice of a claim for delay”, and noted the correct procedure for delay claims under the Contract. Regardless, the Consultant did not accept that the roofing work could not have been completed on time despite the sagging beam issue.

Karimi’s evidence was that he disagreed with the findings of the Consultant. He did not believe he was asking for a delay claim, but rather he was simply asking for the extra costs associated with roofing in cold weather conditions. He also disagreed with the conclusion of the Consultant that the work could have been completed on time. Nothing further was done by Finn Way with respect to this issue until August 2018.

c. Change Order 68 (“CO68”) was issued October 30, 2017, to provide for costs over and above the agreed upon allowance for solar shades.

This Change Order came about as a result of RFI 104. At the time of bidding, the design of the solar shades was only conceptual, and Finn Way required further information to be able to complete this part of the project. The RFI was submitted May 15, 2017, but no response was received until August 25, 2017, which was outside the contractual timelines for response. Even after the response was received, further information was required to attempt to provide a more cost-effective option.

Karimi’s evidence was that the delay in response did not directly impact Finn Way working on the project but delayed finalizing a curtain wall design that Finn Way says delayed the project, although no Contract time extension was sought in the Change Request Form, only a change to the Contract price.

d. Change Order 93 (“CO93”) was issued February 6, 2018, to provide for the supply and install of a Nitrogen wall outlet in the biomass lab. Some specialty items had to be ordered, and it would take some time to receive them. The addition to the contract price sought by Finn Way for this change in the scope of work was $4,226.87, with an additional 5 days in contract time sought. The change in contract price included the permitted 10% claim by Finn Way on account of overhead and profit on subcontractor charges. CO93, signed by the Consultant and the Owner, but not Finn Way, approved the addition to the contract price, but was silent as to the additional time.

e. Change Order 126 (“CO126”) was issued June 26, 2018, and dealt with the exit signs. The amount sought by Finn Way on the Change Request Form was $5,481.44, with an additional 40 days of time added to the Contract. The contract price was increased accordingly.

[18] There is no dispute that the additional costs reflected in the Change Orders were agreed upon and paid.

[19] With respect to the additional time, even though the changes to the contract time necessitated by the Change Orders were not reflected on the face of the Change Orders, or in the consultant’s own change order summary, there is no dispute that except for CO5, the additional time was understood by all parties to the Contract to have been agreed upon.

[20] PCN68.2 was issued September 21, 2017, with respect to revisions to lighting required by the Contract. Finn Way had sought clarification of the lighting requirements, which led to discussions between LU and the Consultant about various design issues. This ultimately led to a change in the lighting provided for in the Contract. This was a further change that Finn Way claims impacted the project and lead to the cumulative delay that formed part of the extension cost request.

[21] Further to PCN68.2, Finn Way submitted a Change Request Form on February 28, 2018, seeking $46,011.63 plus HST to be added to the Contract price on account of these revisions, with no change in Contract time sought. Having said this, the Change Request Form did indicate “Note: Many of these lights have a long lead time 12 weeks.” Change Order 100 (“CO100”) was issued by the Consultant on February 28, 2018, for the revisions to the work and amount claimed by Finn Way. There was no additional time allotted. It was approved by LU on March 7, 2018.

[22] The parties agree that the total additional time required to complete the project because of all agreed upon changes in work (some of which may not be noted above) was 6 months. There is no dispute that Finn Way did not cause any part of this delay. There is no dispute that the work was done in a good and workmanlike manner. There is no dispute that Finn Way has been paid all amounts agreed upon by the parties.

[23] There is also no dispute that when the Project Manager made recommendations to LU to approve the COs, he gave no indication that the Contract time was being adjusted nor did he make any comment as to whether or not extension costs were being claimed.

[24] Where the dispute arises is whether the Change Request Forms and COs were intended to cover all costs associated with the delay arising from these changes to the original scope of work. Karimi testified that they were not. He testified that the time extensions sought in the Change Request Forms were estimates only and did not contemplate all delay to the project. He further testified it was his understanding that the ultimate costs associated with the extensions of time due to change orders and owner delay would be determined later once the cumulative delay was known.

[25] Karimi testified that once the total cumulative delay became known, Finn Way submitted a Change Request Form (dated August 1, 2018) to the Consultant and the Project Manager, requesting that a CO be issued to add delay, or “extension costs” to the Contract price in the amount of $200,424.86 plus HST. These costs included the delayed productivity costs invoiced by Cardinal for the roofing delay arising out of changes to the Contract associated with CO65.1. They also included the site costs incurred by Finn Way arising from having to be on site longer than anticipated by the Contract because of the changes required by CO5, CO65.1, CO68, CO93, CO126, and PCN #68.2 (CO100). Even though that total time was approximately 6 months, Finn Way claimed only 5 months. Specifically, the Change Request Form claimed:

Insurance 5 months @ $1313.28/month $ 6,566.40

Supervision 5 months @ $10,400/month $52,000.00

Site office 5 months @ $3846/month $19,230.00

Fencing 5 months @ $2692/month $13,460.00

Site housekeeping 5 months @ $8,800/month $44,000.00

Overhead/profit @ 15% $20,288.46

Cardinal Roofing Quote #7007 for delay costs $40,800.00 plus HST

Overhead/profit on subcontractor quote $ 4,080.00

[26] None of these costs were provided for in the Change Request Forms or the COs. Karimi testified that these costs would have still been known to LU as Finn Way’s monthly costs associated with being on-site for the project were provided for in the Contract bid. LU should have known that a 6-month delay in the project would result in a bill for the additional site costs associated with the total cumulative delay.

[27] Neither the Consultant nor the Project Manager responded to the August 1st, 2018, Change Request Form (delivered August 2nd, 2018). The Consultant, Project Manager, and LU were all surprised by the claim.

[28] On November 19, 2018, Karimi followed up with an email to the Consultant, Project Manager, and LU as follows:

“Please consider this a Notice in Writing to request the processing of our “Extension Costs” Change Request dated August 1st, 2018 (attached). Paraphrasing CCDC2, GC 6.5.1, [i]f the Contractor is delayed in the performance of the Work by an action or omission of the Owner, Consultant or anyone employed or engaged by them directly or indirectly, then the Contract Time shall be extended for such reasonable [t]ime…The Contractor shall be reimbursed by the Owner for reasonable costs…….the attached in this case. As we all know, the extension of time we are requesting in the attached CR is valid and is mainly the accumulation of approved days added through approved Change Orders.

This Change Request was submitted on the 2nd of August and has not been responded to by either the Owner or Consultant since that day. Throughout the CCDC 2 document, it states “within a reasonable time” for many reviews and decisions; Finn Way believes that the lack of response to this Change Request has gone on longer than need be.

Please process this Change Request.”

[29] On November 19, 2018, the Consultant responded to the Finn Way email by noting that the Cardinal claim had been dealt with in the past and was not justified. The Consultant suggested that Finn Way keep the Cardinal claim separate from Finn Way’s claim. Finn Way declined, stating that the claims should be dealt with as a “package”.

[30] On January 28, 2019, the Consultant sent correspondence to LU setting out his views with respect to the claims and noted that he was still awaiting “direction from Lakehead University and CBRE but have not received any instruction or written direction to date.”

[31] In the January 28th, 2019, correspondence to LU, the Consultant expressed the following:

a. He disputed the Cardinal claim for the reasons previously given to Finn Way; and

b. He indicated that there may be “some validity” to the Finn Way claim for extension costs given the delays in the project unrelated to Finn Way’s actions, but that the “effective impact need be evaluated more closely to assess the validity of the claim.”. The Consultant did note that there were 58 change orders issued after the original Contract date for substantial performance, and that the “project was plagued with unrealistic deadlines since the design began and in our opinion the consultants and the contractor are being left to deal with the after-effects.”

[32] Finn Way did not receive a copy of the Consultant’s January 28, 2019, correspondence to LU. Finn Way argues that the Consultant’s actions were contrary to his contractual duty of impartiality. As no further response was received from the Consultant, Finn Way sent a further follow-up to LU directly on January 31st, 2019.

[33] On March 18, 2019, after Finn Way retained counsel, the Consultant issued findings with respect to the extension and Cardinal costs. It is acknowledged by LU that this was beyond the 30-day response time provided for in the Contract.

[34] Finn Way did not accept the findings of the Consultant and exercised its rights under the dispute resolution provisions of the Contract, providing notice in writing of dispute to LU. Amongst other things, Finn Way expressed concern that the Consultant was in conflict in deciding these issues, as some of the delay was caused by design errors potentially attributable to the Consultant (although the evidentiary record suggests there were other contributing factors) and because of the Consultant’s actions with respect to seeking feedback from LU as to how to respond to Finn Way’s claim. On April 5, 2019, Finn Way’s counsel sent a “Notice of Dispute”. It was not sent to the Consultant as required by the Contract.

[35] On April 18, 2019, in-house counsel for LU (Ms. Eccles) confirmed that LU was willing to meet to discuss a resolution and if they were unable to resolve all issues, a Notice of Reply would be sent within 5 business days thereafter. LU and Finn Way agreed to this process.

[36] A meeting invite was sent to all parties to the Contract, including the Consultant. Finn Way took exception to this and asked that the Consultant not be present.

[37] The meeting occurred on April 25, 2019, but no resolution was reached. No Notice of Reply was delivered by LU as indicated in the April 18, 2019, correspondence from Ms. Eccles. Instead, on May 8, 2019, Ms. Eccles sent correspondence to counsel for Finn Way, taking the position that Finn Way’s Notice of Dispute did not comply with the requirements of GC 8.2.2 by not sending the Notice of Dispute to the Consultant. By virtue of this technical breach, LU took the position that Finn Way had no other remedy under the Contract.

[38] On July 9, 2019, counsel for Finn Way sent correspondence to the Consultant attaching the Notice of Dispute, without prejudice to Finn Way’s position that LU waived any alleged invalidity of the Notice of Dispute by its subsequent conduct, on which Finn Way relied. No resolution was reached, and Finn Way sued for payment.

Analysis:

Does the Contract Entitle Finn Way to the Extension and Cardinal Costs Claimed?

[39] Leaving aside for the moment LU’s argument that Finn Way’s failure to deliver the Notice of Dispute to the Consultant bars its claim, is there a provision in the Contract that allows Finn Way to bill for extension costs and for the Cardinal costs when the project nears substantial completion and the total cumulative delay is known?

[40] Finn Way argues that not only does the Contract permit it, but it is industry standard to do so. Finn Way further argues that LU should have known that there would be an additional invoice towards the end of the Contract term on account of delay arising out of the issues identified above. Karimi’s evidence was that “It’s pretty obvious…”. From Finn Way’s perspective, there were approved extensions of time as reflected in the COs that went beyond the original Contract time. Having approved the extra time added to the Contract, LU should have noticed that no extension costs were added to the COs. LU knew, or ought to have known that there are additional fixed costs associated with those approved delays (or any additional delays arising from them) for which Finn Way would be seeking compensation.

[41] Finn Way argues:

a. The Contract provides for extensions of time and reasonable costs to be paid to a contractor because of delay that is not their fault (GC 6.5.1).

b. There is no dispute that the delay in this project was owner and/or consultant delay.

c. The Change Request Forms submitted by Finn Way constituted notice of the delay that entitled Finn Way to reasonable compensation. Only one notice of a continuing delay is required, and no further notice was required as the delay continued.

d. There is no dispute that the amount claimed is reasonable.

e. The Cardinal costs are delay costs arising out of CO 65.1. Notice that a claim was being made for these costs was provided in RFI 229.

f. The Contract time extensions approved in the CO process should have put LU on notice that extension costs would be claimed. These costs were specified in the contract bid and were not a surprise to LU.

g. The actual total delay costs were confirmed as the project neared completion, and the claim made August 2, 2018, in a timely manner as required by GC 6.6.1. It was only at this point that Finn Way’s actual costs associated with delay could be substantiated and quantified.

h. Finn Way has an obligation under GC 6.6.2 to mitigate any loss incurred because of events giving rise to a claim. It did this by waiting to the end of the project to assess the actual extension costs, as opposed to estimating them as part of the CO process. This action benefits the owner.

i. Compliance issues with the Contract respecting the timeliness of the claim, if any, should not prevent the claim. LU and the Consultant consistently disregarded the contractual timelines for various steps.

j. Compliance issues with the Contract regarding the dispute resolution process were waived by LU through oral agreement and conduct.

[42] LU argues that:

a. Finn Way’s handling of the extension and Cardinal costs are not in accordance with the terms of the Contract, nor are they industry standard. Briggs, McKillop, and Stechyshyn all testified to this.

b. Finn Way’s position is the antithesis of what a fixed price contract is intended to do, which is to provide certainty to the owner as to its costs.

c. If Finn Way intended all along to claim extension costs, it should have done so as part of the CO process given that the costs related to changes in scope of work are already contemplated by that process.

d. LU had a right to assume that when a CO was requested, the contractor has considered all its costs and that it would not be presented with additional costs after. To find otherwise, defeats the certainty intended with a fixed price contract.

e. LU did not waive, either by its conduct or agreement, any of the requirements of the Contract.

[43] I agree with the position of LU for the following reasons:

a. Firstly, the nature of the CCDC2 used by the parties is to provide as much certainty as possible with the construction project. Briggs testified that this certainty, particularly with respect to price, is very important to LU, who is a public entity and is therefore risk adverse.

b. Absolute certainty is virtually impossible with construction projects. This project was no different. Changes in the scope of work were required because of unforeseen circumstances and because of items within the Contract that required further clarification. The CCDC2 provides for methods by which changes in work, time, and/or price are to be dealt with, in keeping with the concept of having as much certainty as possible with respect to these important aspects of the contract.

c. I find that the Contract provides for various methods of dealing with costs such as extension costs. If costs arise out of negotiated changes to the scope of work and Contract time, then the extension costs should be incorporated into COs and negotiated as part of the change in Contract price that is associated with the change in scope of work and time. At the very least, there should be some indication in the CO that these costs will be billed so that the Owner knows the complete costs associated with the change in scope of work. If, for example, the costs arise out of delays not associated with negotiated changes to the scope of work, or that are unanticipated when the change to the scope of work and Contract time is agreed upon (i.e. if the delay is longer than anticipated by the CO), then the delay provisions of the Contract are applicable. This is the case with the Cardinal claim. Finn Way did not follow the contractual requirements for a claim under either the CO or delay provisions.

d. Taken together, all the provisions of the Contract are designed to avoid exactly what happened here; a bill being presented to the owner at the conclusion of a project for extra unexpected charges.

[44] I note the following provisions of the Contract with respect to COs and my findings:

a. A CO is defined in the Contract as:

…a written amendment to the Contract prepared by the Consultant and signed by the Owner and the Contractor stating their agreement upon:

• a change in the work;

• the method of adjustment or the amount of the adjustment in the Contract price, if any; and

• the extent of the adjustment in the Contract time, if any.

b. GC 6.2.1 provides that when changes in the work are proposed or required, the Consultant is to provide the Contractor with a description of the proposed work, and the Contractor shall then present to the Consultant a method of adjustment or amount of adjustment for the Contract price (if any), and the adjustment to the Contract time.

c. Finn Way sent Change Request Forms to the Consultant which provided for extra time and for an increase to the Contract price arising from the changes to the scope of work but made no mention whatsoever of additional site costs that would be charged because of the additional time contemplated by the CO. In my view, they should have. They knew what the change in work was, and they had provided their best estimate as to the extra Contract time required. At each point that Finn Way completed a Change Request Form, they knew that they would be on site at the project longer than the Contract price contemplated and that they would incur additional site costs because of the outlined changes. The COs are the time to determine all costs associated with the change in work, including the extension of time. When an Owner is considering a change to contract work that will result in a change in price and time, they are entitled to know the full impact of the change when they decide whether to agree to it or not. I find that the total cost of the changes, as sought by Finn Way in the Change Request Form, should have contemplated the extension costs and not just the permissible overhead percentage charged. This is the only way for the Owner to know the exact impact of the change in work to the Contract time and price. This interpretation of the Contract is most consistent with the letter and spirit of the fixed price Contract. According to LU’s witnesses, it is also consistent with industry practice. In the absence of evidence to the contrary – other than Karimi, who while experienced, is more limited in his experience than Briggs, the Consultant, and the Project manager - I am inclined to accept the evidence of LU’s witnesses in this regard. Each of them is very experienced with respect to CCDC2 projects.

d. This conclusion is also consistent with the findings in Doyle Construction Co. v. Carling O’Keefe Breweries of Canada Ltd., 1988 2844 (BC CA) at para. 57:

[57] …The evidence also indicates that not one of the 50 change orders contained a reservation or indication of the fact that further costs, direct, indirect, or cumulative, could be attributable to the specific item being dealt with. I do not understand how, in the face of all the avenues for relief offered under the contract, it could be said that the compensation agreed to did not settle payment for all the work or activity covered by the particular change order. I do not see why these prices should be renegotiated except by consent of the owner. I think, therefore, that the appellant’s remedy to obtain payment under these internal contract remedies has been exercised and is gone nd that the trial judge was right in saying that the impact costs could not be recovered in this way under the provisions of the contract. It was no doubt in this background that the trial judge [p. 156 C.L.R.] indicated he would rely upon a statement made by Mahoney J., in support of his view (Walter Cabott Const. Ltd. v. Can. (1974), 1974 1263 (FC), 44 D.L.R. (3d) 82 at 90 (Fed. T.D.)):

“…when a person engages a contractor and when an extra price is agreed to in respect of a particular item, that person has a right to assume the contractor has taken into account all of his costs, direct and indirect, flowing from the change in circumstances that led to the renegotiation and that he will not later be presented with a bill for additional compensation.”

e. The CO process as reflected in the Contract contemplates not just a fixed adjustment to Contract price, but also a method to be used to determine adjustments. This could have accounted for Finn Way’s concern of overbilling the Owner if they overestimated the delay, while the CO, combined with the delay provisions of the Contract could have been used in the event the delay was underestimated. While I appreciate the Plaintiff’s submission as to its obligation under GC 6.6.2 to mitigate any loss caused by delay, this cannot excuse leaving any mention of a claim for extension costs until the project neared substantial completion.

f. I also note that the court in Graham Construction and Engineering (1985) Ltd. v. LaCaille Developments Inc., 2006 ABQB 898 [Graham], allowed a claim for delay of a contractor who reserved its rights in COs to claim additional compensation at a later date, but denied the contractor’s claim for any amounts not reserved in COs or for which no further written notice was provided. The court found that the contractor had provided notice to the owner that they should anticipate further claims when it reserved its rights in COs. While I appreciate that the CO provisions of the contract in Graham were materially different than the case at hand, the principles are applicable.

g. I do not accept Finn Way’s argument that LU should have known it would be billed for extension costs because LU knew and approved the changes to the Contract time and could see there were no additional extension costs added to the Change Request Forms. It is not LU’s responsibility to contemplate what additional charges the contractor will seek at the conclusion of the Contract. The entire purpose of a fixed price contract is to avoid such surprises and to provide for a timely mechanism of dealing with additional costs or delay as they arise. Furthermore, as stated above, each of LU’s witnesses indicated that this is not their experience as to how such claims are made.

h. My findings are not altered by Finn Way’s failure to sign the COs or by the Consultant’s failure to add the additional time to the COs or his own change order summary. It also is not altered by the Project Manager’s failure to make specific recommendations as to extensions of the Contract time. The evidence is clear everyone understood that the additional Contract time sought by Finn Way was approved. The Consultant and Owner approved all requests for additions to the Contract price and time made by Finn Way other than the 7-day Contract extension related to CO5, and the Cardinal claim. Finn Way’s letter to LU dated January 31, 2019, confirms Finn Way was operating on the understanding that the time extensions had all been approved. Karimi’s evidence confirmed his understanding that the Contract time extensions were granted. Finn Way knew the exact number of days for which an extension to the Contract time had been approved.

[45] With respect to the delay provisions of the Contract under which Finn Way purports to make its claim, I find that they are not applicable either because the extension costs should have been dealt with under the CO provisions, or alternatively proper notice was not provided as required by the Contract. The relevant delay provisions of the Contract are:

a. GC 6.5 pertains to delays. GC 6.5.1 provides that if the Contractor is delayed in the performance of the “Work” by an action or omission of the Owner, Consultant or anyone employed or engaged by them, then the Contract time shall be extended for such reasonable time as the Consultant may recommend and the contractor shall be reimbursed for reasonable costs incurred as a result of the delay.

b. “Work” is defined to mean the total construction and related services required by the Contract Documents. Contract Documents is defined to include documents listed in Article A-3 of the agreement, which includes “amendments agreed upon between the parties”. In my view, the latter incorporates agreed upon COs.

c. GC 6.5.3 and .4 provide for reasonable extensions of the Contract time on account of abnormally adverse weather conditions or for any delay to the Work caused by circumstances beyond the Contractor’s control, other than one resulting from a default or breach of contract by the Contractor. In these circumstances the Contractor is only entitled to payment for costs incurred as a result of the delay if they result from actions by the Owner, Consultant, or anyone employed or engaged by them.

d. Pursuant to GC 6.5.4, no extension shall be made for delay unless Notice in Writing of the cause of the delay is given to the Consultant no later than 10 working days after the commencement of the delay. In the case of a continuing cause of delay only one Notice in Writing is necessary.

e. Upon reviewing the entirety of GC 6 with respect to changes to the Contract price and time, I find that the delay provisions of the Contract are not intended to capture the extension costs sought by Finn Way on account of any change to which a CO applies. Again, a plain and common-sense interpretation suggests that all costs associated with a change in work should be included in the CO unless the parties specifically reserve those rights to deal with them later as part of a delay claim. Finn Way could have estimated the costs, subject to a final reconciliation at the conclusion of the project. I find that the delay contemplated by GC 6.5 are unanticipated delays, and not those that were already contemplated by a change in the scope of work for which time and costs are already conclusively agreed to. It may include greater delay arising from changes to the scope of work than originally contemplated by a CO, provided the other conditions of GC 6.5 apply. Furthermore, no extension of time was being sought by Finn Way, merely costs associated with extensions already contemplated by the CO process.

f. In this case, there is no delay outside of that contemplated by the COs:

i. Karimi testified that the issues that were the subject matter of the COs affected the “critical path”, being critical tasks that are required to be completed in order to progress on site.

ii. The change in Contract time requested in the COs represented the estimated impact to the Contract schedule.

iii. There is no evidence that the delay related to any COs exceeded the time claimed in the Change Request Forms agreed to by the parties.

iv. The total delay to the project is greater than that which is contemplated by the COs referred to in this decision, but Karimi testified there were a lot of change orders.

v. The evidence of Karimi is that the extension costs claimed are all on account of “days that were accepted” as extensions to the Contract time in the COs. There is no evidence that Finn Way claims for time other than that which was agreed to based on the Change Request Forms and the COs.

vi. Therefore, there is no basis to deal with extension costs under the delay provisions as opposed to in the CO process.

g. The Cardinal claim is the more difficult one to deal with. These additional costs are associated with the delay to roofing work because of the structural beam issue, which was not and could have been known to Finn Way at the time the Change Request Form was submitted and when CO65.1 was issued. Finn Way describes this delay claim as a productivity loss directly tied to CO65.1. Karimi in his evidence states that he sought a CO for these costs because they were not a delay claim. Cardinal’s invoice refers to delay due to weather. The Consultant treated it as a delay claim, even though there appears to be no extension to the Contract time sought, just merely unanticipated costs arising out of the delay contemplated by CO65.1. This suggests that the Consultant interpreted another possible avenue for a delay claim.

Regardless, the basis for the claim is that the delay in resolving the structural beam issue caused roofing work to extend into winter conditions. This caused additional costs. There is no evidence that the intervening weather conditions, were “abnormally adverse”, but they could not be predicted with any precision. It was reasonable that Finn Way did not anticipate these costs in the Change Request Form that resulted in CO65.1 and needed another contractual avenue to advance the claim arising out of the delay associated with CO65.1. I am satisfied, having heard the evidence of Karimi and Brodie Codeiro (Cardinal project manager/treasurer) that the costs were reasonable and necessary.

Finn Way originally sought to have the Cardinal costs dealt with through an RFI, requesting the issuance of a PCN. The Consultant advised Finn Way that this was not the proper method of dealing with this claim, and that a delay claim should be submitted. Finn Way was further notified that as per Specification Section 01-26-15, the RFI did not constitute notice of a claim for delay. Knowing that, Finn Way’s position at trial that the RFI constituted notice of a further claim is not tenable.

No delay claim was submitted as Karimi did not believe the matter to be properly the subject of a delay claim (although this is the basis on which Finn Way now claims this and other extension costs). The problem is that Finn Way did nothing about the Consultant’s finding from December 15, 2017, until August 2018 when the extension costs request was made. If Finn Way did not believe that they were making a delay claim, then the findings of the Consultant should have been disputed at that point in time. No notice of dispute was made regarding the Consultant’s findings until August. The timelines for a delay claim were not honoured. Finn Way failed to make a claim under GC 6.6, which provided the appropriate avenue of recourse when such a dispute arises regarding changes to contract price. There is no evidence that Finn Way gave any notice of its dispute of the Consultant’s findings or to their intention to formally make a claim contrary to those findings. Given Finn Way’s inaction, LU was entitled to treat this issue as resolved based on the Consultant’s findings.

h. If I am incorrect with respect to my finding that the extension costs should have at least been reserved in the COs, I find that Finn Way cannot recover under the delay provisions because of its failure to comply with the required notice provisions of the Contract.

GC 6.5.4. provides that no extension for delay shall be made unless Notice in Writing of the cause of delay is given to the Consultant not later than 10 Working Days after the commencement of the delay. In the case of continuing cause of delay only one Notice in Writing shall be necessary.

Notice in Writing within 10 working days after the commencement of the delay is a prerequisite for compensation for delay under GC 6.5. In Graham, at para. 212, Hughes J., citing Hudson’s Building and Engineering Contracts, 11th ed. (London: Sweet & Maxwell, 1995) from paras. 4-132, which noted that the purpose of timely notice provisions in building contracts is to enable the owner to consider the position and its financial consequences. It was further noted that in most cases the courts will be ready to interpret these notice requirements as conditions precedent to a claim, so that failure to give notice within the required period may deprive the contractor of all remedy.

Finn Way argues that it gave notice when it submitted the COs or the RFI. I have already dealt with the RFI related to the Cardinal claim. With respect to the COs and the Change Request Forms, “Notice in Writing” is defined in the Contract as a “…written communication between the parties or between them and the Consultant that is transmitted in accordance with the provisions of Article A-6 of the Agreement…” Even though there is a suggested format in the “Guide to Model forms and Support Documents (for use with CCDC 2 – 2008)”, I agree with Finn Way that the Notice in Writing does not need to be given in any specific form as long as it is a written communication transmitted in accordance with Article A-6, and provides notice to the Owner that there is delay for which a claim may be made. Graham, at para. 215, citing Centura Building Systems Ltd. v. Cressey Whistler Project Corp. (2002), 2002 BCSC 1220, 2002 CarswellBC 2044, at para. 54:

[I]t is the substance rather than the form of the notice…that is important…What is crucial is that the notice provide sufficient particularity to ensure that the recipient understands a claim will be advanced against it for costs related to delays.

As was the case in Graham, I find that the notice contemplated by the Contract is some written notice evincing Finn Way’s intention to pursue damages for an identified delaying act or omission no later than 10 days after the delay or the continuing delay’s commencement. That did not happen here.

The COs are not Notice in Writing of an additional claim for delay. Again, the COs contemplate that the additional costs associated with the change in scope of work and any resulting delay anticipated at the time the CO was agreed to, have been accounted for. They do not signal any intention whatsoever to make further claims. If there is additional delay outside of what is contemplated by the COs, or unanticipated costs arising out of delay, then that is the subject of a delay claim and specific Notice in Writing of that additional delay is required.

Therefore, I find there was no notice provided of an intention to pursue damages in accordance with the requirements of the delay provisions of the Contract.

i. I also reject Finn Way’s argument that if the Cardinal RFI response from the Consultant constitutes a finding under the Contract that needed to be formally disputed, the conduct of the parties was such that time requirements were not being enforced and it was open for Finn Way to raise it again in both August 2018 and November 2018. I acknowledge that the solar shades RFI took an inordinate amount of time to respond to, which was outside the Contract time limits. I further acknowledge the evidence as to discussions at site meetings about the importance of more timely responses to CO approval requests. However, this cannot excuse Finn Way’s conduct in doing absolutely nothing about this finding from December 2017 until August 2018. Karimi’s evidence was that he made a unilateral decision to deal with the claim along with his extension costs. Karimi testified that he told a representative of LU that there would be a Cardinal charge later, but he could not recall when or to whom he said this. LU says that the conversation never happened. The evidence does not prove on a balance of probabilities that even oral notice was given (contrary to the written notice requirements of the Contract), and therefore I find that this did not happen. Again, the scheme of the Contract is to deal with issues in as timely a manner as possible, and not to have issues such as this arise unexpectedly at the conclusion of a Contract.

[46] Caselaw relied upon by the Plaintiff does not assist them:

a. Golden Hill Ventures Ltd. v. Kemess Mines Inc., 2002 BCSC 1460, at paras. 741 and 742. While I agree a “notice defence” may fail where the notices given were sufficient to meet the purpose of the notice provisions or where the parties modify and/or waive the strict notice procedures during construction, that was not the case here. There was no notice that further claims would be made.

b. The Plaintiff also relies on Ledcor Construction Limited v. Carleton University, 2009 9458 (ONSC) [Ledcor]. In that case, the plaintiff claimed damages for delay and included in its claim, damages for amounts said to be owed to subcontractors. The defendant brought a partial summary judgment motion to dismiss the subcontractor claims. The motion was dismissed.

The contract in Ledcor was the CCDC2 stipulated price contract. The delay claims related to acts that were beyond the contractor’s control. The case is factually different and does not assist the Plaintiff other than with respect to the obvious statement in para. 16 of the case that the CCDC2 contemplates delay damages, and that the subcontractor’s claim for delay or other changes must be funneled through the general contractor. I accept both these propositions, but this case does not alter any of the other findings I have made.

c. The Plaintiff also relies on Schindler Elevator Corporation v. Walsh Construction Company of Canada, 2021 ONSC 283. Again, I do not disagree with the principles outlined at paras. 299 – 302 of that decision, but those principles include that actual or constructive notice of the delay must be given if required by the Contract. It was required by the Contract in this case, and I have found it was not provided.

[47] Finn Way argues that GC 6.6 also provides another contractual avenue for its claims. They point to the following GCs:

a. GC 6.6.1 provides that if a contractor intends to make a claim for an increase to the Contract price, they must give timely Notice in Writing of intent to claim to the other party and to the Consultant.

b. GC 6.6.2 requires the contractor to take all reasonable steps to mitigate any loss or expense which may be incurred as a result of the event on account of which they are making the claim and keep reasonable records to support the claim.

c. GC 6.6.3 requires the party submitting the claim to do so within a reasonable time.

d. GC 6.6.4 provides that where the event or series of events giving rise to the claim has a continuing effect, the detailed account submitted under GC 6.6.3 is to be an interim account, with further interim accounts giving the accumulated amount of the claim submitted at a later date. A final account is to be submitted once the effects resulting from a series of events have crystalized.

[48] Finn Way argues that the August 2nd, 2018, email constituted timely notice of an increase being sought to the Contract price. I disagree with Finn Way’s argument that their claims can be supported by GC 6.6. Again, the CO provisions are designed to fully capture all known changes to the Contract arising out of the approved changes. With respect to the Cardinal claim, the failure to deal with the dispute to the Consultant’s findings at the time it arose renders the claim untimely.

[49] Furthermore, even if Finn Way had a reasonably held belief that this provision was applicable to the extension costs, GC 6.6 contemplates interim accounts and not simply surprising an Owner with a claim close to the end of the Contract. Finn Way did not do that.

[50] Taken together, all the provisions of the CCDC2 that I have reviewed are designed to avoid exactly what happened here. While the costs that Finn Way is claiming are not unreasonable in the sense that they were reasonably incurred through no fault of Finn Way’s, I find that subject to me granting relief from forfeiture, they are not recoverable as Finn Way failed to follow the contractual requirements for recovery of such costs.

Relief from Forfeiture

[51] Finn Way argues that it should be granted relief from forfeiture of any violation of the technical requirements of the Contract. The costs claimed for are reasonable, and Finn Way should not be made to bear responsibility for delay costs that were caused by LU or the Consultant.

[52] LU argues that Finn Way is not entitled to advance its claim in light of its failure to follow the mandatory dispute resolution steps provided for in the Contract. Specifically, a failure to serve the Consultant with Finn Way’s dispute of his findings with respect to the August 2, 2018, claim.

[53] Relief from forfeiture refers to the power of a court to protect a person against the loss of an interest or right because of their failure to perform a covenant or condition of an agreement or contract. It is an equitable remedy and purely discretionary: Kozel v. The Personal Insurance Company, 2014 ONCA 130 [Kozel], at paras. 28 and 29.

[54] Section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43, is the statutory authority to grant relief from forfeiture.

[55] As per Kozel, at para. 29, the power to grant relief from forfeiture is:

[P]redicated on the existence of circumstances in which enforcing a contractual right of forfeiture, although consistent with the terms of the contract, visits an inequitable consequence on the party that breached the contract…[r]elief from forfeiture is granted sparingly and the party seeking the relief bears the onus of making the case for it.

[56] In exercising discretion to grant relief from forfeiture, the Court must consider:

a. the breaching party’s conduct in terms of reasonableness;

b. the gravity of the breach; and

c. the disparity between the value forfeited and the damage caused as a result of the breach.

See: Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, at para. 88; Kozel v. The Personal Insurance Company, at para. 31; and PDM Entertainment Inc. v. Three Pines Creations Inc., 2015 ONCA 488, at para. 65.

[57] The reasonableness inquiry into the conduct of the Plaintiff is a broad one. It “requires an examination of the reasonableness of the breaching party’s conduct as it relates to all facets of the contractual relationship, including the breach in issue and the aftermath of the breach”: see Kozel, at para. 61, citing Ontario (Attorney General) v. 8477 Darlington Crescent, at para. 89.

[58] The scope of the reasonableness analysis requires consideration of the nature of the breach, what caused it, and what the claimant attempted to do about it. All the circumstances, including those that go to explain the act or omission that caused the forfeiture should be taken into account: see Kozel, citing Williams Estate v. Paul Revere Life Insurance Co., (1997), 1997 1418 (ON CA), 34 O.R. (3d) 161, at pg. 175.

[59] I find that Finn Way did not act reasonably. I agree with the Defendant’s submission that the evidence supports one of two conclusions: either the Plaintiff forgot to include the extension costs in the Change Orders, or Karimi had a subjective belief that he could add these costs on at the end of the project. Based on Karimi’s evidence that he believed industry standard to require the extension costs to be charged at the end of the project, this would suggest that despite familiarity with the CCDC2, Karimi had a mistaken belief as to the requirements of the Contract. While I attribute no mala fides to Karimi, this resulted in a fundamental misunderstanding as to the nature of a fixed price contract. By Karimi’s own evidence, neither he nor Finn Way were neophytes with respect to CCDC2 requirements. This was a Contract with a value in excess of $18,000,000. Karimi’s misunderstanding and decision not to mention these costs at all, but rather leave them costs until the project neared substantial completion was not reasonable. It was the antithesis of what the Contract aims to control or manage.

[60] I find it unreasonable that even based on Karimi’s subjective belief, there was no mention at any point in time to the Consultant, Project Manager, or Owner that there would be additional extension costs billed later. Not only was this right not reserved in the Change Request Forms, but there is no evidence of it being discussed at any time. I also find Finn Way’s delay in dealing with the disputed Cardinal claim unreasonable. As a contractor familiar with CCDC2 contracts, Finn Way knew or ought to have known that there was a process for dealing with disputed claims which did not involve doing nothing for more than 7 months and then attempting to make a claim. This is particularly unreasonable conduct in the face of the Consultant’s response to this claim that explained the proper procedure (at least from the Consultant’s perspective). With respect to the Cardinal claim, the conclusion here is that the Plaintiff either forgot to deal with it or specifically chose to disregard the Contract requirements when the Consultant advised of his interpretation of what they were. This is not reasonable, particularly for an experienced contractor.

[61] The inquiry into the second factor, being the gravity of the breach, requires consideration of the nature of the breach itself and the impact of that breach on the contractual rights of the other party: see Kozel, at para. 67. While it is not necessary to consider this fact given that the test for relief from forfeiture has failed at the first branch, I do so in the event I have erred in my analysis of reasonableness.

[62] Gravity may be measured in different ways. If one were to simply look at the value of the amount claimed by Finn Way in relation to the overall Contract price, it is relatively small. In my view, that would be an overly simplistic way of assessing the gravity of this breach. The breach was to various provisions of the Contract that have already been specified. It was ongoing with each Change Request Form that did not specify that extension costs would also be sought, and then again with respect to Cardinal. The impact of Finn Way’s conduct in adding the extension and Cardinal costs at the end was described by Stechyshyn as rendering the project “unpredictable”. The predictability sought by LU, and ability to control its costs was negatively impact by the breaches. I find that the breaches were serious.

[63] The third factor is a proportionality analysis. It requires comparison of the disparity between the loss of money claimed on account of the extension and Cardinal costs, and the extent of the damage caused by their breach: see Kozel, at para. 69.

[64] In light of my findings with respect to gravity, I find that even though I am sympathetic to Finn Way and Cardinal because their costs are legitimate and the amounts are not insignificant, damage caused by their breach is too serious to remedy. To excuse Finn Way’s dealings with the extension and Cardinal costs would be to negate the spirit and intent of the CCDC2.

Threshold Issue:

[65] LU argues that the entire claim is barred because of Finn Way’s failure to follow the contractually required dispute resolution provisions, and in particular, its failure to send the April 5th, 2024, Notice of Dispute to the Consultant. This generated considerable argument at trial as to whether such provisions had been waived or not, and consideration of the conduct of LU and the Consultant in not complying with required timelines in the Contract. While I am dismissing the claim on its merits, I appreciate that this issue needs to be addressed in the event I am incorrect with respect to my analysis of the merits.

[66] While Finn Way’s conduct in this regard was contrary to GC 8.2.2, the argument in favour of relief from forfeiture is more persuasive to me than the argument based on waiver or oral agreement. I do not view LU’s conduct in agreeing to meet with Finn Way without the Consultant as waiver of the requirements of the Contract, but rather a good faith gesture to attempt to address the contractor’s concerns.

[67] If I had found that Finn Way did have a contractual claim to the amount sought, or should be granted relief from forfeiture, I would not be inclined to deny it based solely on a failure to comply with GC 8.2.2 and would grant relief from forfeiture for the following reasons:

a. While Finn Way’s non-compliance with contractual requirements generated the issues in dispute, it was not Finn Way’s actions that resulted in the Consultant not being sent the Notice of Dispute. While LU points to Finn Way’s belief that the Consultant was not impartial, and Finn Way’s refusal to have the Consultant attend the settlement meeting as evidence that the non-compliance with GC 8.2.2 was a calculated decision, I am prepared to accept counsel for Finn Way’s representation that it was counsel’s error in not doing so. For this reason, I would be more inclined to excuse it as opposed to considering it as cumulatively one more breach by Finn Way (intentional or not) of the Contract terms that renders their conduct unreasonable. When counsel became aware of their error much later, after the issue was raised by LU, they attempted to rectify it by sending the July 19, 2019, letter. In drawing this conclusion, I do note that all parties were loose in their compliance with the dispute resolution provisions of the Contract and LU did not bring Finn Way’s non-compliance with GC 8.2.2 to its attention until May 8, 2019, after LU had agreed to meet and formally reply to the dispute.

b. The breach in of itself was not serious. The dispute was brought to the Consultant’s attention by LU.

c. In considering the proportionality analysis, I would find the harm greater to not allow the claim on the basis of this issue alone than to allow it. LU brought the dispute to the attention of the Consultant so that he could provide input. I note that LU and the Consultant had not complied with various provisions of the Contract with respect to timeliness of responses. In the big scheme of this dispute, this was a minor and technical issue that caused no prejudice to the Defendant.

Order:

[68] For the foregoing reasons, the action is dismissed. If the parties cannot agree as to costs, submissions shall be made in writing as follows:

a. The Defendant shall deliver its submissions, limited to five pages, double-spaced (excluding Bill of Costs, offers to settle, and caselaw), no later than March 29, 2024, failing which costs will be deemed to have been resolved.

b. The Plaintiff shall deliver its submissions no later than April 26, 2024, similarly, limited to five pages.

c. Any reply shall be delivered no later than May 10, 2024, limited to two pages.

“originally signed by”

The Hon. Madam Justice T. J. Nieckarz

Released: February 12, 2024

COURT FILE NO.: CV-19-527-00

DATE: 2024-02-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Finn Way General Contractor Inc.

Plaintiffs

• and –

Lakehead University

Defendants

REASONS FOR JUDGMENT

Nieckarz J.

Released: February 12, 2024