The court, however, increased the trial judge’s award of damages to the supplier, finding that the judge had failed to fully account for expert evidence regarding the compaction of the soil that was delivered and measured.
In J. Jenkins and Son Landscape Contractors Limited v. Iron Trio Inc., 2025 ONSC 1781, Justice Graeme Mew dismissed arguments that the trial judge had erred by rejecting the supplier’s evidence that the signed delivery tickets were evidence of the buyer’s acceptance of the amounts delivered by the appellant.
Justice Mew noted that it was open to the trial judge to conclude that the parties did not intend that the signing of chits “on a busy worksite, where there was pressure to get things done” would be the sole determinant of the amount of soil delivered.
“Rather, the trial judge’s interpretation and application of the contract was consistent with the practice and expectations of the parties at the time the contract was entered into, namely that the loads delivered by the appellant would each contain 25 cubic yards of soil mix, but that the respondent would not be required to pay for more soil mix than had actually been delivered,” he wrote.
The respondent, Orin Contractors Corp., a general contractor, was working on a project to construct a multi-sport field and an adjacent cricket pitch.
The appellant, J. Jenkins and Son Landscape Contractors Limited, was contracted to provide soil for the project. The appellant claimed that it delivered 16,558 cubic yards of soil on the basis that some 662 truck deliveries were made with each truckload containing 25 cubic yards of soil.
A delivery ticket accompanied each of the deliveries made by the appellant’s trucks. The delivery tickets provided that the trucks must be loaded and required a signature from the customer’s representative on site accepting each load as it was delivered.
One day prior to final deliveries by the appellant, the respondent raised a concern about whether each truckload delivered by the appellant had in fact consisted of 25 cubic yards of soil.
After the final delivery by the appellant, the respondent undertook an investigation of this concern with the assistance of a surveyor, MRM Surveyor Inc.
The respondent subsequently advised the appellant that there was a clear discrepancy between the invoices it had submitted and the amount of soils delivered to the project, based on the respondent’s internal measurements and the results of a verification survey undertaken by MRM.
The appellant took the position that it had, in fact, supplied all the soil loads it had invoiced for.
The respondent subsequently undertook a survey of 14 stockpiles that had been left on the project site and had not yet been spread. After completing the survey, the respondent confirmed it would pay the appellant only for the amount of soil it believed had been supplied to the project.
It refused to pay the appellant’s invoices totalling $796,430, instead paying $442,212, leaving an unpaid balance of $354,218.
The appellant commenced an action against the respondent.
A trial judge did not allow three witnesses tendered by the appellant to testify on the basis that none of the letters or reports tendered by them complied with the expert witness requirements of Rule 53.03.
The rejected evidence sought to address whether there was an industry standard for the sale and distribution of soils, mulches and other related products on a loose cubic yard basis and the typical rate of compaction through hauling, spreading and weathering of the topsoil once spread.
The trial judge preferred the evidence of the respondent’s witnesses, including the calculations undertaken by MRM, and the expert evidence of a professional engineer, William Burmeister.
The trial judge also rejected the appellant’s argument that the contract between the parties specified that prices were based on “truck volumes/tickets” and, accordingly, that the signed delivery tickets were evidence of the respondent’s acceptance of the amounts delivered by the appellant.
The trial judge described this approach as a “black letter” approach to the interpretation of contract law and stated that it had long been displaced by a more pragmatic and contextualized approach.
He concluded that there was no agreement that the respondent would pay for more soil mix than was delivered.
The judge ordered that the respondent pay the appellant $15,433, an amount that it had accepted that it owed the appellant due to an accounting error.
The appellant challenged the decision, arguing among other things that the trial judge erred by not considering the ordinary meaning of the terms of the contract and instead effectively creating a new agreement.
It argued that the respondent accepted each delivery, including the quantities of soil represented, as having been delivered, when its employee on site signed the corresponding delivery ticket.
It submitted that by finding that the parties did not agree that the respondent would pay more for soil mix than was delivered, the trial judge effectively substituted a different contract than that to which the parties had agreed.
Justice Mew rejected this argument, noting that it was open to the trial judge to conclude on the evidence that the parties did not intend that the signing of chits would be the sole determinant of the amount of soil delivered, even where there was evidence that less soil was actually delivered than the appellant claimed.
The judge also rejected the appellant’s argument that the trial judge erred in failing to exercise the court’s discretion to admit expert witnesses tendered by the appellant, noting that he had clear grounds for exercising his discretion by excluding the evidence of the appellant’s proposed experts.
The appellants also argued that the trial judge erred in finding that the respondent’s approach to damages reflected an estimated 10 per cent rate of compaction through hauling, spreading and weathering.
The evidence of Michael Allan, the vice-president of Orin Contractors Corp., was that the respondent estimated compaction to be about two per cent, while the respondent’s project manager, Conor Sheehan, testified that a compaction rate of 1.5 to two per cent was applicable.
The trial judge had also accepted the evidence of Burmeister that a normal compaction of 10 to 15 per cent could be expected.
“[H]aving accepted the respondent’s position on compaction, which was clearly tied to the Burmeister report, Mr. Burmeister’s opinion on compaction in the range of 10 to 15 per cent does not appear to have figured in the trial judge’s assessment of damages,” Justice Mew observed.
He noted that an allowance of 10 per cent for compaction would, based on the respondent’s adjusted figures, produce a further $45,765 toward the appellant’s claim, in addition to the $15,433 awarded by the trial judge.
Justice Mew substituted the trial judge’s award of damages with an award of $61,198.
Julian Heller of Julian Heller and Associates, counsel for the appellant but not trial counsel, said the decision highlighted the importance of making sure the appropriate witnesses are called, and that experts are properly qualified.
“Where the other side prompts an expert report, it becomes even more important to ensure that there is an answer from a similarly qualified expert. Otherwise, you are leaving yourself open to the possibility that … the judge is going to pay a lot of attention to that expert,” he told Law360 Canada.
Kevin Fernandes of Julian Heller and Associates also represented J. Jenkins and Son on appeal, though he did not act as trial counsel.
Counsel for the respondent were Ryan Hauk and Marco Falco of Torkin Manes. They were not immediately available for comment.
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