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Notice and Waiver of Claim: Court Grants Partial Summary Judgment Motion

Urban Mechanical v. University of Western Ontario 2018 Ont SCJ

The sub commenced an action for $2.9 million of which $1.7 million related to a claim to a specific alleged extra. The general brought a motion for partial summary judgment relating to the $1.7 million claim. The judge reviewed the contract and the specifications to conclude that the work for which the sub claimed was not an extra. He had no problem in granting a partial summary judgment because he held that the claim was a discrete claim. There was no risk of an inconsistent or duplicative finding when the rest of the action was to heard. The specifications that were important for that issue would not arise again. The dismissal of that claim ensured that there was no necessity at trial to quantify the claim and this resulted in significant savings in time and expense. Therefore summary disposition was proportional, expeditious, economical, and fair. Finally, the judge held that the sub’s failure to give appropriate notice in accordance with the terms of the contract resulted in the sub losing its right to make the claim. The contract was a CCA contract that incorporated the usual dispute resolution provisions in the CCDC contracts. Section 8.1.1 gave the general at first instance the power to decide questions arising out of the subcontract and interpret its requirements. Section 8.2.1 noted that, if the sub did not send a notice of dispute within 7 working days of that decision, the sub was deemed to accept the decision.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.