



COURT OF APPEAL FOR ONTARIO

CITATION: MacNamara v. 2087850 Ontario Ltd., 2017 ONCA 813

DATE: 20171023

DOCKET: C63462

Simmons, Rouleau and Brown JJ.A.

BETWEEN

Tyler MacNamara

Plaintiff (Respondent)

and

2087850
    Ontario Ltd., o/a Strathcona Construction,

Robert Koblinsky
,
    and Richard Morris

Defendants (
Appellants
)

Michael Farace, for the appellants

Sarah Whitmore and Crawford Smith, for the respondent

Heard and released orally: October 16, 2017

On appeal from the judgment of Justice J.T. Akbarali of
    the Superior Court of Justice, dated February 10, 2017, with reasons reported
    at 2017 ONSC 499.

REASONS FOR DECISION

[1]

The appellants argue that the motion judge committed four errors in
    finding that:

1.

a contract existed between the parties;

2.

there had been fraudulent invoicing;

3.

overcharging had been concealed; and

4.

double-charging for HST had taken place.

The appellants argue that the motion judge committed a
    fifth error in admitting into evidence portions of Mr. Finnegans affidavit and
    cross-examination.

[2]

With respect to the first ground, the appellants submit that there was
    no contractual agreement between the parties as to the work to be undertaken
    and the basis for payment. In the appellants submission, the work carried out
    was on an
ad hoc
basis. In the absence of an agreement, Strathcona was
    free to charge what it wanted for the work.

[3]

We dismiss this ground of appeal. There was ample evidence supporting
    the motion judges conclusion, at para. 26, that the parties had an oral
    agreement and that [t]he contract between the parties required Strathcona to
    bill its actual costs plus a mark-up. The mark-up Strathcona charged was 25%.

[4]

This was a two-and-a-half-year project at a cost of over six million dollars
    with architect plans and a site supervisor. In our view, it was simply
    inconceivable that the work was all done
ad hoc
as suggested by the
    appellants. It is also inconceivable that there was no agreement as to what,
    how or in what amount the work could be billed.

[5]

As we have concluded that the motion judge correctly determined the
    existence and central terms of the contract, the second, third and fourth
    grounds of appeal fall away. To succeed on these grounds, the appellants had to
    succeed on the first ground. Each of the three impugned findings logically
    followed once the motion judge found that a contract was in place with the
    terms set out above.

[6]

Finally, we are not persuaded that it was an error to admit Mr. Finnegans
    evidence about the amount of excess charges included in Strathconas invoices.
    His testimony in this respect amounted to evidence gathering and arithmetic. It
    did not stray into the realm of expert evidence. The motion judge could conclude
    that Mr. Finnegans previous employment by the respondent did not
    interfere with his ability to give this evidence. During the oral argument
    before this court, the appellants conceded that they are not challenging Mr.
    Finnegans calculations.

[7]

In the result, the appeal is dismissed. Costs of the appeal are awarded to
    the respondent and fixed in the amount of $25,000, inclusive of disbursements
    and applicable taxes.

Janet
    Simmons J.A.

Paul
    Rouleau J.A.

David
    Brown J.A.


