Executive Summary: Key Legal and Evidentiary Issues

• Appellants challenged five findings from a trial decision awarding Protosteel Ltd. payment on four disputed invoices plus contractual interest.
   
• Deference to the trial judge's factual and mixed fact-law findings formed the central issue on appeal.
   
• Contractual interpretation of the extras provision, which addressed billing but not how extras were to be communicated, determined whether specific invoices, including one for a roof screen, fell within billable work.
   
• Evidence about post-agreement drawings and completed work supported the trial judge's conclusion on the roof screen invoice.
   
• Interest at 18% on unpaid balances was applied to the extras despite no written agreement specifically extending that rate to extras.
   
• Costs of the trial were left undisturbed once the underlying judgment was not varied on appeal.
   

Facts of the case

This is an appeal of a decision by McSweeny J., dated December 6, 2024, which granted judgment in favour of Protosteel Ltd. Versailles Investment Ltd. and Henry Chiu Architect Ltd. had contracted Protosteel to supply and install structural steel at their Mississauga Convention Center project. Protosteel was not paid to its satisfaction for the work performed and sued to recover the outstanding amounts. Although its lien under the Construction Act had lapsed, the litigation proceeded to trial. The appeal concerns the trial judge's award of damages and interest on specific unpaid invoices, totalling $38,033.55 plus 18% interest, and also challenges her costs award.

Policy and legislative provisions at issue

The contract between the parties set out what work was included and specified that any extras required were to be billed on a "time and materials" basis. It did not, however, contain a provision addressing how extras were to be communicated between the parties. At trial, McSweeny J. had to determine whether the appellants were required to pay amounts owing on Invoices 164, 165, 201, and 316, and she found that the contract's 18% interest rate on unpaid balances applied to these extras as well.

Reasoning and analysis

The appellants argued the trial judge erred in five respects: finding that a roof screen supply and installation was miscellaneous steel and an extra outside the contract; finding Invoice 201 payable as part of light pole work billed under Invoice 202; finding the appellants obligated to pay for exterior staircase work that was never completed; applying the contract's 18% interest rate to the extras without evidence the appellants agreed to that rate for extras specifically; and, if the judgment were varied, adjusting the costs award accordingly. The panel disagreed with each argument. It characterized the grounds as challenges to factual or mixed fact-and-law findings owed deference, and found no error of law or palpable and overriding error. On the roof screen, the court held the trial judge reasonably concluded the invoices fell within the contract's extras provision, pointing to evidence that the roof screen was required for the project, that later drawings prepared after the quote included the roof screen and its dimensions, and that the work was completed to the appellants' satisfaction. On the light pole invoice, the court found the invoice and accompanying packing slip, read in the context of the trial evidence, supported the factual conclusion that it was a payable extra. On the exterior stairs, the court noted a quote had been sent and approved by Mr. Chiu, but the relationship between the parties broke down before installation was finished; the trial judge accepted Protosteel's evidence on the cost of the metal and discounted the invoice by 25% to reflect the incomplete work, an approach the panel found free of reversible error. On interest, the panel held the 18% rate's application to the extras was a matter of contractual interpretation grounded in settled principles, and identified no error of law or palpable and overriding error in the trial judge's reasoning.

Ruling and overall outcome

The Divisional Court dismissed the appeal, leaving McSweeny J.'s findings on the disputed invoices and the 18% interest rate intact. Because the underlying judgment was not varied, the court declined to reduce the trial costs award. As for costs of the appeal itself, the panel fixed these at $15,000, inclusive of HST and disbursements, payable to Protosteel Ltd., in accordance with the parties' agreement. Protosteel Ltd., the respondent, was the successful party throughout.