



COURT OF APPEAL FOR ONTARIO

CITATION: Mississippi River Power
    Corporation v. WSP Canada Inc., 2019 ONCA 771

DATE: 20190930

DOCKET: C66126

Juriansz, Benotto and Miller JJ.A.

BETWEEN

Mississippi
    River Power Corporation

Plaintiff (Appellant)

and

WSP Canada Inc., Genivar Inc.,
    William R. Walker Engineering Inc., Wm. R. Walker Engineering Inc., Douglas
    Leask, M. Sullivan & Son Limited, Michael Dent, Dent Engineering, 1009044
    Ontario Ltd., Harrington Plumbing and Heating Limited operating as Harrington
    Mechanical

Defendants (Respondents)

Helmut R. Brodmann, for the appellant

David M. Adams and Matthew E. Taft, for
    the respondents Michael Dent, Dent Engineering and 1009044 Ontario Ltd.

David A. Tompkins, for the respondent
    M. Sullivan & Son Limited

Christopher F. Reil, for the respondent
    Harrington Plumbing and Heating Limited operating as Harrington Mechanical

J. Stephen Cavanagh, for the respondents
    WSP Canada Inc., Genivar Inc., William R. Walker Engineering Inc., Wm. R.
    Walker Engineering Inc. and Douglas Leask

Heard: September 24, 2019

On
    appeal from the judgment of Justice Robyn M. Ryan Bell of the Superior Court of
    Justice, dated October 15, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from partial summary
    judgment: (1) granted in favour of the Walker respondents limiting the Walker
    respondents potential liability to the appellants to $2 million; (2) granted
    in favour of the remaining respondents also limiting potential liability to $2
    million.

[2]

The Walker respondents entered into a personal
    services contract (PSC) with the appellant which contained a clause limiting
    the liability of Walker to $2 million.

[3]

The appellant argues that the motion judge erred
    in her interpretation of the PSC by impermissibly using subsequent conduct of
    the parties to interpret that contract. Specifically, the error is said to be
    in finding that the parties had agreed by their conduct to extend the terms of
    the PSC beyond design services to govern the construction phase of the project
    as well.

[4]

The appellant argues that the motion judge ought
    to have taken the minutes of the MRPC board meetings as evidence that the
    appellant and the Walker respondents had entered a second contract to govern
    the construction phase, and ought to have applied the terms of that contract.

[5]

The motion judge did not accept this argument,
    and held that the PSC was extended, by way of a stipulated price contract, so
    as to apply to services provided by Walker during the construction phase of the
    project. The motion judges interpretation of the contract is entitled to
    deference. We are not persuaded that the motion judge made any error in
    principle or any other reviewable error. We would not interfere with this determination.

[6]

With respect to the second issue, the appellant
    argues that the motion judge erred in extending the benefit of the limit on
    liability to the remaining respondents. The motion judge found that the
    appellant and Walker intended to extend the benefit of the insurance covenant
    to the remaining respondents. She did so on the basis that it would have made
    no sense commercially for Walker to bargain to limit its own liability to $2
    million, while leaving itself exposed to claims for contribution and indemnity
    from the remaining respondents.

[7]

The appellant conceded that this is a question
    of mixed fact and law to be assessed on the standard of palpable and overriding
    error. The motion judges interpretation of the contract was open to the motion
    judge on this standard of review.

[8]

We do not agree with the submission that the
    motion judge erred in not finding that the insurance limits prescribed by the
    PSC were increased by the quantum required by the CGL coverage set in the
    stipulated Price contract., The insurance limits prescribed by the stipulated
    Price contract do not relate to professional liability, which is the subject of
    the insurance clause the PSC. The PSC HAS mechanism for increasing the limit,
    and that mechanism was not used.

[9]

The appeal is dismissed. We are advised that the
    parties have agreed on costs and there is no need for this court to make an
    order in this respect.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


