Akman Construction Ltd v Urbanmine Inc, 2023 MBCA 88

Citation: Akman Construction Ltd v Urbanmine Inc, 2023 MBCA 88 Date: 20230927 Docket: AI23-30-09875 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre Mr. Justice David J. Kroft BETWEEN : Akman Construction ltd. ) ) J. D. Kendall and (Plaintiff) Respondent ) A. E. Verhaeghe ) for the Appellant - and - ) ) D. M.

Skwark urbanmine inc. ) for the Respondent ) (Defendant) Appellant ) No appearance ) for MMP Architects Inc. - and - ) and Christopher Daly ) MMP Architects Inc. and ) Appeal heard and Christopher daly ) Decision pronounced: ) September 27, 2023 (Third Parties) ) pfuetzner JA (for the Court) : [ 1 ] This appeal arose from a dispute over a construction project. The defendant appealed an order granting

summary judgment in favour of the plaintiff for just over $270,000 in respect of held back funds, interest and costs, and dismissing the defendant’s counterclaim. At the hearing, we dismissed the appeal with reasons to follow. These are those reasons. [ 2 ] The defendant had retained the plaintiff to construct an industrial building for use in its business (the building). The terms of their relationship were set out in a detailed construction contract (the contract) under which the defendant appointed MMP Architects Inc. (MMP) as the consultant.

Upon MMP issuing a certificate of substantial performance for the building, the plaintiff issued an invoice to the defendant seeking payment of the holdback that was retained by the defendant pending completion of the building. The defendant resisted payment on the basis that the building was not suitable to accommodate certain equipment that it had purchased from a manufacturer in Italy (referred to as Bano) and which was yet to be delivered. [ 3 ] In a focussed endorsement, the motion judge analyzed the evidence and granted

summary judgment in favour of the plaintiff, finding that the parties intended the strict terms of the contract to govern their relationship. He found that the evidence of MMP’s representative was “a complete answer” to the defendant’s position as the building was completed in accordance with the drawings “Issued for Construction” pursuant to the contract, and Bano did not provide the final size of the equipment until after the certificate of substantial performance was issued.

Further, the motion judge found that the certificate of substantial performance triggered the defendant’s duty to pay the plaintiff the holdback in accordance with the terms of the contract. Finally, the motion judge dismissed the defendant’s counterclaim for damages for the expenses it incurred to hire a third party to modify the building in order for the equipment from Bano to be installed.

He found that a provision of the contract operated as a waiver of the defendant’s claim for damages as the defendant failed to comply with the contract provisions for notifying the plaintiff of its claim. [ 4 ] On appeal, the defendant argues that the motion judge erred in respect of all of these findings. It submits that the motion judge failed to explain in his endorsement why this matter was appropriate for

summary judgment. It asserts that there are substantial disputes of fact between the plaintiff and defendant and contends that the building was not in fact substantially completed by

the plaintiff since the building, as built, could not accommodate the installation of the Bano equipment. Finally, the defendant maintains that it substantially complied with the notice provisions of the contract by advising the plaintiff of its claim for expenses associated with remodelling the building. [ 5 ] The decision to grant or deny

summary judgment is a discretionary decision entitled to deference on appeal absent a material error as to the facts or the law, or a decision that is so clearly wrong as to amount to an injustice (see Bibeau et al v Chartier et al , 2022 MBCA 2 at para 50 ; and Hryniak v Mauldin , 2014 SCC 7 at paras 81-84 ). [ 6 ] As to the first issue, we are not persuaded that the motion judge failed to apply the test for

summary judgment. His endorsement must be read in light of the submissions made to him and the live issues. It is apparent from the record that the motion judge knew the legal test he was to apply and his endorsement focussed on his analysis of the evidentiary and legal context that led to his conclusion that

summary judgment should be granted—clearly he was of the view that there was no genuine issue requiring a trial. [ 7 ] The second issue raised by the defendant concerns the motion judge’s assessment of the evidence. It contends that the motion judge made a material error in finding that the evidence in respect of the building’s suitability to house the Bano equipment did not raise a genuine issue requiring a trial in light of the other evidence and the terms of the contract. Ultimately, the fundamental issue here is whether a holdback under a construction contract was properly released.

The motion judge found that it was since a certificate of substantial performance was issued by MMP in accordance with its role under the contract. In our view, the motion judge made no material error in determining that there was no basis to look behind that certificate. [ 8 ] Finally, we reject the defendant’s submission that the motion judge made a material error in finding that there was no genuine issue requiring a trial with respect to whether the defendant complied with the notice provision in the contract. [ 9 ] In

summary, we were not persuaded that the motion judge erred in a material way or that his decision was so clearly wrong as to amount to an injustice. The appeal was therefore dismissed with costs. JA JA JA