The Ministry of Transportation (MTO) appealed a trial judgment finding it liable for the failure of a road surface treatment applied by the respondent contractors.
The trial judge concluded the contract was a method specification contract, placing the risk of failure on the MTO, and heavily criticized MTO's counsel for allegedly improperly influencing its expert witness, awarding full indemnity costs.
The Court of Appeal upheld the trial judge's interpretation of the contract but found he erred in his severe criticism of MTO's trial counsel, noting that counsel's interactions with the expert were appropriate under the principles in Moore v. Getahun.
Consequently, the Court reduced the trial costs award from full to substantial indemnity.
