Campbell-Cox Inc. v. Photo Engravers, (1996) 95 O.A.C. 298 (DC)

• Judge: Smith, A.C.J.O.C., Watt and Corbett, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 29, 1996
• Jurisdiction: Ontario
• Citations: (1996), 95 O.A.C. 298 (DC)

Campbell-Cox Inc. v. Photo Engravers (1996), 95 O.A.C. 298 (DC)

MLB headnote and full text

In The Matter Of the Arbitrations Act, 1991, S.O. 1991, c. 17

And In The Matter Of an Arbitration of a dispute commenced by way of action in the Ontario Court (General Division) as Court File No.: CLA-94-CQ-51184, commenced May 6, 1994 and referred to Arbitration by Agreement

Campbell-Cox Inc. (plaintiff/respondent) v. Photo Engravers and Electrotypers Limited, Quebecor Printing PE&E Limited and Quebecor Printing Inc. (defendants/appellants

(Court File No. 550/96)

Indexed As: Campbell-Cox Inc. v. Photo Engravers and Electrotypers Ltd. et al.

Ontario Court of Justice

General Division

Divisional Court

Smith, A.C.J.O.C., Watt and Corbett, JJ.

November 29, 1996.

Summary:

A contractor sued an owner for cost over-runs of $290,000. The parties entered into an arbitration agreement and agreed the award would be final and binding "subject only to appeal on a question or questions of law alone ...". The arbitrator awarded the con­tractor costs of $181,299.50 for impact costs which had not been paid. The owner appealed.

The Ontario Divisional Court dismissed the appeal.

Arbitration - Topic 7905

Judicial review - Jurisdiction of the courts - Consensual arbitrator - General - The Ontario Divisional Court stated that "[i]n general, where parties have chosen arbitra­tion as their forum in which to submit their disputes and articulated the dispute, the court will make every reasonable effort to support the award" - See paragraph 5.

Arbitration - Topic 7909

Judicial review - Jurisdiction of the courts - Effect of agreement to arbitrate - [See Arbitration - Topic 7905 ].

Building Contracts - Topic 807

The contract - Variation - Extras - Gen­eral - Before contract completion, a con­tractor advised an owner in writing of a claim for cost over-runs - The claim quantified the costs and projected ongoing costs - They agreed to deal with it upon completion of the contract - Upon com­pletion, the owner refused to pay the claim - The parties entered into arbitration and agreed that the award would be final and binding subject only to appeal on questions of law alone - The arbitrator awarded the contractor an amount for unpaid impact costs - The owner had impeded contract performance - The original tender was materially changed and the contractor was not adequately compensated for the impact of the changes on the original contract price - The owner's wrongful acts or neglect caused the contractor damage and the contractor provided sufficient written notice of its claim according to the con­tract - The Ontario Divisional Court con­cluded that the arbitrator made no error of law.

Building Contracts - Topic 2623

Payments - Compensation to builder - Extras - Conditions precedent to payment - Notice - [See Building Contracts - Topic 807 ].

Building Contracts - Topic 2625

Payment - Compensation to builder - Extras - Consequential costs - [See Building Contracts - Topic 807 ].

Building Contracts - Topic 3041

Actions against the owner - For breach of contract - General - In the context of a contract between an owner and a contrac­tor, the Ontario Divisional Court set out conduct on the part of an owner which would constitute a breach of contract - See paragraph 31.

Cases Noticed:

Zwirner v. University of Calgary, Barrass and McGown (1977), 6 A.R. 271; 79 D.L.R.(3d) 81 (C.A.), refd to. [para. 5].

Doyle Construction Co. v. Carling O'Keefe Breweries of Canada Ltd. (1988), 27 B.C.L.R.(2d) 89 (C.A.), consd. [para. 16].

Corpex (1997) Inc. v. Canada, [1982] 2 S.C.R. 643; 50 N.R. 197; 6 C.L.R. 221, consd. [para. 24].

Acme Masonry Ltd. v. Bird Construction Ltd. (1986), 20 C.L.R. 228 (B.C.C.A.), refd to. [para. 30].

Daigle (Clarence) & Son Ltd. v. Lackie Brothers Ltd. (1981), 34 N.B.R.(2d) 430; 85 A.P.R. 430 (C.A.), refd to. [para. 31].

Brule Construction Ltd. v. Ottawa (City) (1989), 32 C.L.R. 313 (Ont. H.C.), refd to. [para. 31].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 31].

Authors and Works Noticed:

Hudson, Building and Engineering Con­tracts (11th Ed. 1995), pp. 565, 566 [para. 18].

Counsel:

Pamela L. Hebner, for the plain­tiff/respondent;

Peter E. Manderville, for the defen­dants/appellants.

This appeal was heard on October 9, 1996, before Smith, A.C.J.O.C., Watt and Corbett, JJ., of the Ontario Divisional Court.

Corbett, J., delivered the following reasons for judgment for the Divisional Court and released on November 29, 1996.