Contract: Replacement of a sanitary sewer system (165 meters of pipe).
Dispute: Issues with water presence and soil nature led to additional expenses for the appellant.
Action Taken: The respondent terminated the contract, hired another company to complete the work, and counterclaimed for damages.
Trial Court Decision: Appellant breached the contract but was owed some amounts for completed work. Net amount owed by the appellant to the respondent after set-off: $22,291.25 (Superior Court of Justice, Justice Phillip Sutherland, 2023 ONSC 113).
Appeal Decision
Appeal: Vertical Horizons Contracting Inc. appealed the trial court's judgment.
Appellant's Argument: Challenged the finding of contractual breach and interpretation of the contract.
Court of Appeal Findings:
No palpable and overriding error in the trial judge's factual findings.
No reversible error in the contract interpretation.
Appellant was responsible for the methodology and subsequent impacts despite initial excusal for the first 30 meters.
Outcome: Appeal dismissed.
Costs: Respondent awarded $20,000 inclusive of disbursements and HST.
Key Points
The appellate court emphasized reliance on trial evidence and factual findings.
The contract held the appellant responsible for the chosen methodology and its consequences.
The appeal failed to establish any significant errors warranting reversal of the trial decision.
