(Ontario Court of Appeal) The plaintiff contracted to install a new sewer line for the defendant city. The line marked for excavation was too close to a water-main and, after some work had been done, had to be relocated causing additional cost. The plaintiff claimed that the error arose through the defendant’s fault in marking the line for excavation, and that the city’s project officer had undertaken to pay the additional costs. At trial the judge made no findings of fact in respect of the way in which the error was caused or on the alleged undertaking, but he dismissed the plaintiff ‘s claim. The contract provided that all changes were to be authorized in writing, but several other changes had been made orally and paid for.
On appeal to the Ontario Court of Appeal, held, allowing the appeal and ordering a new trial, the strict requirement of writing had been varied by the conduct of the parties. Consequently, findings of fact were essential to determine the contractual, or restitutionary, rights of the plaintiff. As the critical findings had not been made a new trial was necessary.
Canlii
Canada
Cited by:
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.666016
