2099082 Ontario Limited v. Varcon Construction Corporation

2099082 Ontario Limited v. Varcon Construction Corporation

The motion judge did not err: Varcon failed to produce necessary compaction records and its expert evidence was unreliable; the contractual documents resolved the warranty issue and the warranty cannot be interpreted to make a subcontractor a guarantor for defects it did not cause; accordingly summary judgment on AWD's non-defect findings was appropriate and no genuine issue remained on the warranty question.

Citation
2020 ONCA 202
Parties
Plaintiff (respondent): 2099082 Ontario Limited; Defendant (appellant): Varcon Construction Corporation; Defendant (appellant): Trisura Guarantee Insurance Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
12 March 2020
Procedural Posture
Collection / Appeal From Superior Court Decision on Motions for Partial Summary Judgment
Outcome
Appeal dismissed; cross-appeal allowed.
Legal Topics
Summary Judgment, Warranty Interpretation, Subcontractor Liability, Expert Evidence, Costs
Source Language
English
Civil Construction Law Contract Law Commercial Litigation Civil Procedure Summary Judgment Warranty Interpretation Subcontractor Liability +2 more

Case Brief

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Parties

2099082 Ontario Limited

Plaintiff (respondent)

Varcon Construction Corporation

Defendant (appellant)

Trisura Guarantee Insurance Company

Defendant (appellant)

Procedural Posture

Collection / Appeal From Superior Court Decision on Motions for Partial Summary Judgment

Legal Issues

  1. 1 Whether the motion judge erred in granting partial summary judgment finding AWD's work non-defective
  2. 2 Whether there was a genuine issue requiring a trial on Varcon's warranty-based counterclaim
  3. 3 Whether the subcontract warranty applied to defects allegedly caused by native soil not supplied by the subcontractor

Ratio Decidendi

The motion judge did not err: Varcon failed to produce necessary compaction records and its expert evidence was unreliable; the contractual documents resolved the warranty issue and the warranty cannot be interpreted to make a subcontractor a guarantor for defects it did not cause; accordingly summary judgment on AWD's non-defect findings was appropriate and no genuine issue remained on the warranty question.

Court Disposition

Appeal dismissed; cross-appeal allowed.

Orders

  • Appeal dismissed; cross-appeal allowed.
  • Costs of the appeal and cross-appeal in the agreed amount of $6,000, all-inclusive, payable by Varcon to AWD.