



COURT OF APPEAL FOR ONTARIO

CITATION: Todd Brothers Contracting Limited v. Algonquin
    Highlands (Township), 2015 ONCA 737

DATE: 20151103

DOCKET: C60276

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Todd Brothers Contracting Limited

Plaintiff (Appellant)

and

Corporation of the Township of Algonquin
    Highlands

Defendant (Respondent)

Leo Klug, for the appellant

Todd Robinson, for the respondent

Heard: October 27, 2015

On appeal from the decision of Justice Stephen T. Bale of
    the Superior Court of Justice, dated March 6, 2015 with reasons reported at
    2015 ONSC 1501.

ENDORSEMENT

[1]

The motion judge granted summary judgment to the respondent dismissing
    the appellants claim on a construction contract for the refurbishment and
    extension of a small airport. The motion judge relied  heavily on a waiver
    clause signed by the appellant which provided:

And finally, further it is in this capacity that I swear and
    declare that I will not seek any compensation for damages for timing delays or
    work identified but not completed on this project in the event that the
    Township cannot proceed to any of the phases as a result of matters beyond the
    control of the Township of Algonquin Highlands or delays resulting from the
    review being completed by the CEAA [Canadian Environmental Assessment Agency]
    in a timely fashion
,
any
    other public issues/concerns
or the withdrawal of funding from
    applicable sources
. [Emphasis added.]

[2]

The respondent accepts the effect of the waiver as expressed by the
    appellant at para. 6 of its factum:

Todd Brothers executed the Compensation Waiver Acknowledgement
    and agreed not to seek compensation for damages for timing delays or for work
    identified but not completed in the event that the Township (a) cannot proceed
    to any of the phases as a result of matters beyond the control of the Township
    of Algonquin Islands, or (b) delays resulting from the review being completed
    by the CEAA in a timely fashion, or (c) as a result of any other public
    issues/concerns, or (d) as the result of the withdrawal of funding from
    applicable sources.

For practical purposes, only (c) and (d) are in issue.

[3]

The heart of the motion judges findings is set out in the following
    paragraphs of the reasons for decision:

13 CEAA completed its review in December of 2010, and provided
    a report to Township council. Although the report was not filed as evidence on
    this motion, it would appear that the airport project was approved, subject to
    the implementation of measures to mitigate any adverse environmental effects,
    and subject to certain conditions with respect to reporting. However, a newly
    elected Township council whose members were predominately opposed to the
    project passed a resolution to "defer the execution of the [CEAA report]
    until a further review of the project is conducted."

14 In January of 2011, the Ministry of Natural Resources (MNR)
    proposed a joint airport improvement project, as part of which the Ministry
    would relocate its northeastern fire management headquarters, and consolidate
    its regional operations, at the Haliburton/Stanhope airport. Pursuant to its
    contribution agreement with OMAFRA [the Ontario Ministry of Agriculture, Food
    and Rural Affairs], the Township was obliged to consider MNR's proposal; and,
    although the evidence is not entirely clear on this point, it appears that the
    joint project proceeded, rather than Parts A, B and C of the original project.

15 Todd Brothers' position on the waiver is that Township
    council should have signed off on the CEAA report in December of 2010, and that
    its failure to do so was a purely political decision. However, the political
    decision was based upon public concerns (the members elected to council had
    campaigned in opposition to the original project), and the proposal made by MNR
    in January 2011 would have intervened in any event.

16 In these circumstances, the Township is entitled to rely
    upon the written waiver in full defence to Todd Brothers' claim. The Township
    was unable to proceed with Parts A, B and C of the original project prior to
    December of 2010, because of the ongoing CEAA review. It was unable to proceed
    with those parts of the original project after December of 2010, because of the
    joint airport improvement proposal made by MNR. Had the Township failed to
    pursue the joint project with MNR, as required by the OMAFRA contribution
    agreement, it risked withdrawal of provincial funding.

[4]

The appellant argues that there was no evidence to support reliance on
    the other public issues/concerns provision in the waiver. However, the
    respondent points out that there was public outcry about the project, which was
    to extend and refurbish a small airport. The airport project was an issue in
    the 2010 municipal election, which returned a majority of councillors opposed
    to it, as the motion judge noted at para. 13.

[5]

The appellant argues that there was no evidence that a withdrawal of
    funding might occur, so as to trigger that clause in the waiver. However, the
    respondent points to the January 2011 proposal of the Ministry of Natural
    Resources as a relevant public issue for the purpose of the waiver, which
    also triggered the funding aspect. The Townships financial contribution
    agreement with the OMAFRA, under which the project was to be funded, provides:

4.10 Alternatives to Project. If the Recipient [Township]
    becomes aware of any alternatives to the Project that are more cost effective
    (for example, at area/joint servicing scheme), the Recipient shall immediately
    notify OMAFRA, in which case OMAFRA may, in its sole discretion, adjust the
    Financial Assistance. Likewise, if OMAFRA becomes aware of any alternatives to
    the Project, that are more cost effective, the Recipient will be notified and
    OMAFRA may, in its sole discretion, adjust the Financial Assistance.

[6]

The evidence supports the motion judges conclusions, at para. 14, that
    the Township was obliged to consider the joint development, and, at para 16,
    that failing to pursue the joint project risked withdrawal of provincial
    funding. There is ample support for the motions judges finding that in the
    circumstances, the Township is entitled to rely upon the written waiver in
    full defence to Todd Brothers' claim.

[7]

Finally, counsel for Todd Brothers advises that he was unable to get a
    clear explanation of why the Township failed to proceed with the original
    project, and why the appellant did not get the work on the joint project. He
    submits the motion judge should have refused summary judgment and required the
    matter to proceed to trial after discoveries. We would not give effect to this
    submission. The original project was evidently superseded by the joint project.
    Todd Brothers could have used other avenues under the
Rules of Civil
    Procedure
open to a party to a pending motion to obtain information from
    other parties, even non-parties, as to why Todd Brothers did not participate in
    the joint project, in preparing evidence to respond to the summary judgment
    motion, but did not.

[8]

The appellant has not identified any error of law, or a palpable and
    overriding error of fact, in the motion judges application of the waiver
    clause in granting summary judgment.

[9]

The appeal is dismissed with costs fixed in the amount of $8,500 all-inclusive,
    payable to the respondent.

K.
    Feldman J.A.

P.
    Lauwers J.A.

M.L.
    Benotto J.A.


