



COURT OF APPEAL FOR ONTARIO

CITATION: Niran Construction
    Limited v. DiBattista*Gambin Developments
    Limited, 2013 ONCA 162

DATE: 20130315

DOCKET: C53660

Winkler C.J.O., Armstrong and Hoy JJ.A.

BETWEEN

Niran Construction Limited

Plaintiff (Respondent)

and

DiBattista*Gambin
    Developments Limited,

Northview Downs Developments Ltd.
,
    and
The Corporation
    of the City of Brampton

Defendants (
Appellants
)

Robert D. Malen, for the appellants

James R. Smith, for the respondent

Heard and released orally: February 28, 2013

On appeal from the order of Justice Leonard Ricchetti of
    the Superior Court of Justice, dated March 14, 2011.

ENDORSEMENT

[1]

The appellants, now DiBattista*Gambin Developments Limited, appeal the
    trial judges March 14, 2011 judgment in a construction lien action.  The trial
    judge found that the respondents lien was valid and that there were amounts
    outstanding under the lien.  He dismissed the appellants counterclaim.  The
    trial judges conclusion turned on the interpretation of a rider to the
    contract entered into between the appellant and the respondent.

[2]

The appellant issued a Request for Tenders in respect of work to be done
    on a residential subdivision it was developing in the City of Brampton.  The
    Tender included a form of estimated unit price contract.  The respondent
    submitted a tender and the parties subsequently signed a rider, which converted
    the contract to a fixed price contract with a specified maximum price  the
    Maximum Upset Price.  At the time, what are described as second submissions
    had been submitted to the City.  The City had not yet approved the contract drawings
    and specifications.

[3]

The respondent sought payment for two items: additional asphalt and a sealant
    called Reclamite, both required by the City after the second submissions had
    been submitted to it.

[4]

The issues of interpretation before the trial judge were: (1) whether
    the maximum price applied to work required under the second submissions or
    whatever final drawings and specifications might be approved by the City, and;
    (2) if the former, whether the two items at issue constituted Extras within
    the meaning of the rider and the respondent was entitled to be paid for them.

[5]

In careful and detailed reasons, the trial judge concluded that the
    maximum applied only to work required under the second submissions and that the
    respondent was entitled to be paid for the two items.  The appellant argues
    that the trial judge erred in his interpretation of the rider.

[6]

We do not agree.

[7]

The trial judge identified and correctly applied the applicable
    principles governing the interpretation of contracts.  His interpretation was
    faithful to the language of the rider, made commercial sense, and was supported
    by the subsequent conduct of the parties  particularly with the appellants
    request for a quote for Reclamite.  (Had the application of Reclamite been
    included in the Maximum Upset Price, as the appellant argues, there would have
    been no reason for the appellant to ask for a quotation.)

[8]

In the result this appeal is dismissed.  This is one of two appeals
    heard by us today involving the parties.  While unsuccessful on this appeal,
    the appellant (qua respondent) was the successful party on the other appeal. 
    There will be no costs on either appeal.

Warren K. Winkler C.J.O.

Robert P. Armstrong J.A.

Alexandra Hoy J.A.


