Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether delivery tickets signed on-site constituted binding acceptance of soil volumes invoiced.

• Trial judge excluded all proposed expert evidence from the appellant due to non-compliance with Rule 53.03.

• Findings favored the respondent’s expert survey evidence over the appellant’s unverified truckload assumptions.

• The trial court awarded limited damages based on a small accounting error, rejecting most of the claim.

• Divisional Court found a miscalculation in compaction allowances and increased damages accordingly.

• Costs were reallocated on appeal, with the appellant recovering both trial and appellate costs due to surpassing the settlement offer.

Background of the dispute

J. Jenkins and Son Landscape Contractors Limited supplied soil to Orin Contractors Corp. for a municipal construction project in Stoney Creek, Ontario. Between September and November 2019, Jenkins claimed it delivered 662 truckloads of soil totaling 16,558 cubic yards and invoiced $796,429.80. Orin disputed this, contending only 9,507.68 cubic yards were actually delivered, and paid $442,212.11, leaving a claimed shortfall of $354,217.69.

The contract included a quote specifying soil unit prices and stated that delivery quantities were based on Jenkins’ “truck volumes/tickets.” Each delivery was accompanied by a ticket signed by Orin’s site staff. Initially, there were no objections. However, near the end of deliveries, Orin raised concerns about whether trucks contained the expected volume. They conducted a post-delivery survey using MRM Surveyor Inc. and subsequently refused to pay the full amount invoiced.

Trial decision and reasoning

The trial judge found in favor of the respondent, Orin, on most issues. He awarded Jenkins only $15,433.45 due to an acknowledged accounting error. He held that although the contract mentioned ticket volumes, this did not bind Orin to pay for more soil than was actually delivered. He preferred Orin’s expert survey evidence over Jenkins’ visual assessments of truck capacity. The judge excluded three of Jenkins' proposed expert witnesses for failing to comply with Rule 53.03, citing inadequate disclosure and qualifications. The judge also awarded Orin over $97,000 in costs, determining it had bettered its pre-trial settlement offer.

Appeal and appellate findings

The Ontario Divisional Court partly allowed Jenkins’ appeal. While rejecting most of the challenges to the trial judge’s findings, the court found a miscalculation in the damages assessment. The judge had accepted expert testimony that soil compaction during handling would reduce measured volume by 10–15%, but did not apply this to the final damage award. Correcting the oversight, the appellate court increased the damages awarded to Jenkins to $61,198.

The Court also ruled that, because Jenkins' revised damages award exceeded Orin’s pre-trial offer of $49,132.31 (plus HST), the trial judge erred in awarding Orin its costs. Jenkins was granted costs of $20,000 for the trial, plus disbursements and HST, and $15,000 for the appeal.

Final outcome

The appeal was allowed in part. Damages were increased to $61,198, and the cost award was reversed in favor of Jenkins. The court found that while the trial judge’s interpretation of the contract was reasonable, a factual error in assessing compaction warranted correction. Jenkins ultimately succeeded in recovering both additional damages and legal costs.