Oshawa (City) v. Brennan Paving Co.

Oshawa (City) v. Brennan Paving Co.

When a contract conditions payment on an engineer's certificate but the engineer abandons the contractual method of measurement or refuses to certify and the employer concurs or acquiesces, the requirement of possession of that certificate is excused and the court will determine entitlement; however, recovery for quantities supplied in excess of an express estimate remains barred absent the engineer's written order authorizing the excess.

Citation
[1955] SCR 76
Parties
Defendant/appellant: Corporation of the City of Oshawa; Plaintiff/respondent: Brennan Paving Company Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
9 December 1954
Procedural Posture
Contract / Appeal to Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed
Legal Topics
Construction Contract Interpretation, Condition Precedent to Payment, Engineer's Certificate, Acquiescence/estoppel, Measurement and Payment by Weight
Source Language
English
Contract Construction Law Municipal Law Construction Contract Interpretation Condition Precedent to Payment Engineer's Certificate Acquiescence/estoppel Measurement and Payment by Weight

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Corporation of the City of Oshawa

Defendant/appellant

Brennan Paving Company Limited

Plaintiff/respondent

Procedural Posture

Contract / Appeal to Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether an engineer's failure to certify as required by the contract bars contractor recovery
  2. 2 Whether employer's concurrence in the engineer's departure from contract certification absolves contractor from the certificate requirement
  3. 3 Whether quantities in excess of an estimate require a written order from the engineer to be recoverable

Ratio Decidendi

When a contract conditions payment on an engineer's certificate but the engineer abandons the contractual method of measurement or refuses to certify and the employer concurs or acquiesces, the requirement of possession of that certificate is excused and the court will determine entitlement; however, recovery for quantities supplied in excess of an express estimate remains barred absent the engineer's written order authorizing the excess.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Judgment of the Court of Appeal for Ontario affirmed subject to variation by deducting $1,305.02 (value of 160.125 tons of asphalt supplied in excess of the estimate)