



COURT
    OF APPEAL FOR ONTARIO

CITATION:
614128
    Ontario Ltd. (Trisan Construction) v. Toronto (City), 2020 ONCA 803

DATE: 20201211

DOCKET: C68216

Lauwers, Miller and Nordheimer
    JJ.A.

BETWEEN

614128
    Ontario Ltd. o/a Trisan Construction

Applicant (Appellant)

and

City of
    Toronto

Respondent (Respondent)

Krista J. McKenzie, for the appellant

Michele A. Wright and Georgia Tanner,
    for the respondent

Heard: December 2, 2020 by
    video conference

On appeal from the judgment of Justice Janet
    Leiper of the Superior Court of Justice dated February 12, 2020, with reasons
    reported at 2020 ONSC 902.

REASONS FOR DECISION

[1]

Trisan Construction appeals from the dismissal
    of its application for a declaration that the City of Toronto (the
    "City") pay to it a construction holdback in the amount of
    $174,381.14 plus HST for two contracts signed in 2012 and 2013
. At the conclusion of the hearing, we
    dismissed the appeal with reasons to follow. We now provide our reasons.

[2]

The appellant was the
    general contractor on five watermain and sewer projects for the City. It
    commenced five lawsuits, one on each project, to claim additional amounts for
    extras and delay.

[3]

On or about November
    13, 2018, the parties entered into a global settlement of all five lawsuits.
    The appellant signed a release stating there were no further outstanding claims
    on the projects. Pursuant to the settlement, the City paid the appellant the
    agreed settlement amount of $1,287,500 plus HST.

[4]

At the time of the settlement,
    two of the five projects were not yet complete as deficiencies were still
    outstanding and there were completion holdbacks on both projects. The appellants
    position was that these were statutory holdbacks impressed with a trust
under the
Construction Lien Act,
R.S.O. 1990, c. C.30.


[5]

The Citys position was that the funds held back
    on the two projects were not impressed with a trust under
the

Act
at the time of the settlement because any potential lien rights
    against the holdback funds had long since expired. Consequently, nothing in the
Act
precluded the City and the appellant from incorporating any claims
    for payment of the monies into the broadly worded and final global settlement
    between them.

[6]

The City applied the holdback money to the settlement
    funds paid to the appellant when it paid the settlement funds. The appellant
    claimed that the holdback money belonged to it, separate and apart from the
    settlement, and that the failure of the City to pay these monies to the
    appellant amounted to breach of trust.

[7]

The application judge found that the terms of
    the 2018 settlement constituted a full and final agreement between the parties
    as to all amounts to be paid by the City in satisfaction of the work done with
    respect to the projects. She found that the City was not obliged to make any
    further payment to the appellant.

[8]

The core of the application judges reasoning is
    found at para. 38 of her reasons where she said:

The plain words of the settlement and release
    read together are not ambiguous. They settle all outstanding claims as between
    these parties for the contracts at issue. In this case, there is no unknown
    claim that arose after the settlement. Trisan was aware of its holdbacks and
    was tracking and accounting [for] the funds held back by the City. It did not
    raise this issue as a separate ground for payment at the time of the mediation
    and the settlement agreement did not create any exception or
    "carve-out" for a finishing holdback.

[9]

We agree with the application judge. The parties
    entered into a full and complete settlement of all claims that were outstanding
    between them. The appellant was fully aware of the monies that the City had held
    back. If the appellant had intended that the holdback funds were to be paid
    over and above the settlement amount, it could easily have so stipulated in the
    settlement agreement. It did not. The appellant can not now come forward and
    advance a claim for additional funds in light of the unambiguous terms of the
    settlement agreement and release.

[10]

The appeal is dismissed. The respondent is
    entitled to the costs of the appeal fixed in the agreed amount of $7,000
    inclusive of disbursements and HST.

P.
    Lauwers J.A.
B.W. Miller J.A.

I.V.B. Nordheimer J.A.


