Masontech Inc. v. Aaffinity Contracting and Environmental Ltd., 2014 NSSC 164

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 09, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 164;(2014), 344 N.S.R.(2d) 292 (SC)

Masontech v. Aaffinity Contracting (2014), 344 N.S.R.(2d) 292 (SC);

    1089 A.P.R. 292

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.030

Masontech Inc. (plaintiff) v. Aaffinity Contracting and Environmental Ltd. (defendant)

(Hfx. No. 408739; 2014 NSSC 164)

Indexed As: Masontech Inc. v. Aaffinity Contracting and Environmental Ltd.

Nova Scotia Supreme Court

LeBlanc, J.

May 2, 2014.

Summary:

This action arose out of a construction contract. The plaintiff moved for summary judgment on the evidence.

The Nova Scotia Supreme Court allowed the motion and granted judgment to the plaintiff.

Building Contracts - Topic 2797

Payment - Compensation to builder - For changed conditions - Evidence and proof - Defence Construction Canada (DCC) contracted Aaffinity, as general contractor, to conduct repairs to the drainage system, foundation and retaining walls of the Halifax Armoury - Aaffinity retained Masontech as a subcontractor - Masontech's scope of work included dismantling and rebuilding the Armoury's north and south retaining walls - The original contract was priced partly as a lump sum, for amounts that could be priced in advance, and partly by unit pricing, with amounts due to be determined as the work was carried out - Masontech encountered problems (delays and materials) which increased costs - Masontech sought to revise the contract - In a series of October-November emails (notably a November 4 email setting out a new quote), the parties agreed on an adjusted payment - DDC approved the change on November 24 - Over the next several months, Masontech carried out the work in accordance with the November 4 quote, invoicing Aaffinity by way of monthly progress claims - Aaffinity paid the December, January and February invoices - Additional invoices were submitted and the work continued - Aaffinity made some payments - Masontech now claimed that the entirety of the contract had been completed and sued for judgment of $286,846.86 - Masontech moved for summary judgment on the evidence - The Nova Scotia Supreme Court allowed the motion - There were no material facts in dispute with respect to whether the parties objectively agreed to the new price as the basis for the additional work - As between the parties, Aaffinity's conduct could not reasonably have led to any other conclusion, and there was no evidence to suggest otherwise - There was a dispute as to the amounts properly payable - The court was not convinced, however, that an adequate assessment of damages was possible here without resort to weighing evidence and potentially making findings of credibility that were not permissible on summary judgment - The court granted judgment to Masontech on the basis that the parties agreed to the terms of the November 4 email, subject to an assessment of the amount actually due, taking into consideration amounts actually paid and Aaffinity's claims of double-billing and unwarranted charges.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Building Contracts - Topic 2797 ].

Cases Noticed:

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, consd. [para. 26].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 27].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 31].

Szeto v. Dwyer et al. (2010), 297 Nfld. & P.E.I.R. 311; 918 A.P.R. 311; 2010 NLCA 36, refd to. [para. 32].

Saturley v. CIBC World Markets Inc. (2011), 297 N.S.R.(2d) 371; 943 A.P.R. 371; 2011 NSSC 4, refd to. [para. 32].

Proost v. Ferncroft Equities Ltd. et al. (2014), 342 N.S.R.(2d) 210; 1083 A.P.R. 210; 2014 NSSC 99, refd to. [para. 33].

Pettipas v. Hunter Noel Holdings Ltd. et al., [2014] N.S.R.(2d) Uned. 38; 2014 NSSC 70, refd to. [para. 33].

Saint John Tugboat Co. v. Irving Refining Ltd., [1964] S.C.R. 614, refd to. [para. 42].

Nicholas v. Pictou Landing Band Council (2000), 189 N.S.R.(2d) 64; 590 A.P.R. 64 (S.C.), affd. (2001), 193 N.S.R.(2d) 130; 602 A.P.R. 130; 2001 NSCA 60, refd to. [para. 43].

Irving Oil Limited v. Incan Ships Limited (1979), 26 N.B.R.(2d) 512; 55 A.P.R. 512 (Q.B.), revd. (1980), 30 N.B.R.(2d) 319; 70 A.P.R. 319 (C.A.), refd to. [para. 43].

Hall-Chem Inc. v. Vulcan Packaging Inc. (1994), 12 B.L.R.(2d) 274 (Ont. Gen. Div.), refd to. [para. 44].

Kareway Homes Ltd. v. 37889 Yukon Inc., [2013] B.C.A.C. Uned. 7; 2013 YKCA 4, refd to. [para. 46].

McNamara Construction Co. v. Newfoundland Transshipment Ltd. et al. (2002), 213 Nfld. & P.E.I.R. 1; 640 A.P.R. 1 (N.L.T.D.), dist. [para. 47].

Corner Stone Holdings Ltd. et al. v. Savage, [2002] B.C.T.C. Uned. 423; 2002 BCSC 1255, refd to. [para. 48].

Concord Construction Inc. v. Camara (1992), 4 C.L.R.(2d) 263 (Ont. Gen. Div.), refd to. [para. 48].

Scotsburn Co-Operative Services Ltd. v. Goodwin (W.T.) Ltd., [1985] 1 S.C.R. 54; 57 N.R. 81; 67 N.S.R.(2d) 163; 155 A.P.R. 163, refd to. [para. 49].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 70].

Authors and Works Noticed:

Halsbury's Laws of Canada, Contracts, § HCO-6 [para. 69].

Spencer, Bower and Turner, The Law Relating to Estoppel by Representation (3rd Ed. 1977), p. 4 [para. 49].

Counsel:

Joseph Herschorn, for the plaintiff;

James D. MacNeil, for the defendant.

This motion was heard at Halifax, Nova Scotia, on January 9, 2014, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 2, 2014.