Deferral of deficiencies did not bring project to halt

Construction Law - Contracts - Subcontracts

Defendant was awarded general contract for construction of elementary school, and plaintiff was successful subcontractor for millwork at school. Project was bedeviled by early problems that compromised building schedule and when flooring could not be completed, installation of certain cabinetry components could not be completed such that defendant instructed plaintiff not to complete certain aspects of contract. Dispute arose as to whether and to what extent plaintiff completed millwork. Plaintiff brought successful action for damages and defendant brought unsuccessful counterclaim for deficiencies. Trial judge found that evidence supported that it was probable that water damaged window sills and did not constitute deficiency on plaintiff, that most of damage was caused by impacts for which plaintiff was not at fault, and that there was no evidence that two countertops were improperly installed. Trial judge found that to scrap materials was unreasonable as it made no sense to incur cost of $22,900 when original materials cost was fraction of that amount for materials that were designed to be re-worked and re-seamed. Defendant appealed. Appeal dismissed. Trial judge made no palpable and overriding error. There was evidence supporting finding that plaintiff had virtually completed all work and that deferral of deficiencies did not bring project to halt. There was evidence of parties’ ongoing investigations, discussions, and negotiations that supported finding that plaintiff did not abandon contract as matter or fact.

Man-Shield (NWO) Construction Inc. v. 1022403 Ontario Ltd c.o.b. as Mirmil Products (2019), 2019 CarswellOnt 10465, 2019 ONSC 3992, Lafreniere J., Myers J., and Williams J. (Ont. Div. Ct.); affirmed (2018), 2018 CarswellOnt 375, 2018 ONSC 168, H.M. Pierce J. (Ont. S.C.J.).

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