IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Centura Building Systems (2013) Ltd. v.  
601 Main Partnership,  
2022 BCSC 295  
Date: 20220225  
Docket: S164499  
Registry: Vancouver  
Between:  
And  
Centura Building Systems (2013) Ltd.  
Plaintiff/  
Defendant by Counterclaim  
601 Main Partnership and 5264 Investments Ltd.  
Defendants/  
Plaintiffs by Counterclaim  
Before: The Honourable Madam Justice Warren  
Reasons for Judgment  
Counsel for the Plaintiff and Defendant by  
Counterclaim:  
D. Laudan  
N. Crema  
Counsel for the Defendants and Plaintiffs by  
Counterclaim:  
S. Coblin  
N. Preshaw  
M. Hashmi, Articled Student  
Place and Dates of Trial:  
Vancouver, B.C.  
January 18-22, 25-29,  
February 1-5, 8-10,  
12, 16-19, 22-26,  
March 2-4, and 8-11, 2021  
Written Submissions of the Defendants:  
Place and Date of Judgment:  
March 25, 2021  
Vancouver, B.C.  
February 25, 2022  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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Table of Contents  
INTRODUCTION ....................................................................................................... 3  
BACKGROUND......................................................................................................... 4  
POSITIONS OF THE PARTIES............................................................................... 11  
The plaintiff’s original position .............................................................................. 11  
The defendants’ original position.......................................................................... 12  
Change in positions on last day of trial................................................................. 13  
ISSUES.................................................................................................................... 14  
DISCUSSION........................................................................................................... 16  
Credibility.............................................................................................................. 16  
Was 601 Main entitled to terminate the Contract pursuant to GC 6.5.10  
irrespective of whether Centura was at fault for or the cause of the delay? ......... 17  
What, if anything, is Centura entitled to be paid in respect of the Contract Value  
Claim?.................................................................................................................. 20  
What, if anything, is Centura entitled to be paid in respect of the Interference  
Claim?.................................................................................................................. 44  
Have the defendants established that Centura breached the Contract and, if so,  
what damages flow from the established breach(es)? ......................................... 49  
Did Centura breach the Contract? .................................................................... 50  
What if any damages flow from the breach of contract? ................................... 53  
Did Centura file a claim of builders lien in an amount that it knew or ought to have  
known was exaggerated and, if so, are the defendants entitled to damages for  
abuse of process?................................................................................................ 58  
What is the appropriate rate and method for calculating interest to be paid on any  
amounts found owing to either party? .................................................................. 64  
What is the appropriate costs award? .................................................................. 65  
CONCLUSION......................................................................................................... 65  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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Introduction  
[1]  
This case concerns a dispute over work performed by the plaintiff, Centura  
Building Systems (2013) Ltd. (“Centura”), on a construction project located at the  
corner of Main Street and Keefer Street in Vancouver, BC (the “Project”). The  
Project was a multi-level residential and commercial tower.  
[2]  
Centura was the initial framer, drywall installer, and insulation installer for the  
Project.  
[3]  
The defendant 601 Main Limited Partnership (“601 Main”) was the developer  
of the Project. 601 Main is an entity related to Westbank Projects Corp.  
(“Westbank”), a well-known real estate development company in British Columbia.  
During the time material to this dispute the defendant 5264 Investments Ltd. (“5264  
Ltd.”) was the registered owner of the land on which the Project was built. 5264 Ltd.  
held title as nominee for 601 Main, the beneficial owner. The manager for the Project  
was Icon West Construction Ltd. (“Icon”), as agent for 601 Main.  
[4]  
Centura’s work on the Project was governed by a modified form of CCDC-17  
stipulated-price contract between it and 601 Main (the “Contract”).  
[5]  
The Project was beset by delays and conflict between the parties from the  
outset. In brief, Centura says Icon’s mismanagement caused a number of events  
and conditions that interfered with its ability to complete its work in a timely way and  
caused it to incur increased costs. 601 Main says Centura did not have the  
workforce required to meet the schedule for the Project and failed to perform its work  
properly which caused 601 Main to incur costs to retain an alternate contractor to  
complete and correct deficiencies in Centura’s work, as well as costs resulting from  
a four-month delay in completing the Project.  
[6]  
On January 23, 2016, 601 Main terminated the Contract. 601 Main says that  
it was permitted to do so under a termination provision in the Contract, as a result of  
Centura being delayed in the performance of its work. Centura’s initial position was  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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that 601 Main did not have the right to terminate the Contract and that its purported  
termination amounted to a repudiation of the Contract.  
[7]  
Centura filed a claim of builders lien and commenced this action alleging that  
it is owed money for work it performed and materials it provided prior to the  
termination of the Contract, and claiming damages for breach of contract for  
interference in its work and lost profits it would have earned had 601 Main not  
wrongly terminated the Contract.  
[8]  
601 Main counterclaimed, seeking damages for breach of contract associated  
with the alleged delays and deficiencies in Centura’s work, as well as damages for  
what it says was the improper filing of the builders lien.  
[9]  
On the last day of the trial, during reply submissions, Centura changed its  
position with respect to the validity of the termination of the Contract. It maintained  
that it was not at fault for any delay, but submitted that 601 Main was entitled to  
terminate the Contract for delay irrespective of fault. As a result, it abandoned the  
claim for lost profits.  
Background  
[10] On December 10, 2013, Icon put out a call to tender for the framing, drywall,  
and insulation scope of work for the Project. On December 16, 2013, Centura  
submitted a bid to complete this scope of work for $1,367,000, excluding taxes.  
Centura’s bid was selected and, in or around August 2014, the parties entered into  
the Contract which was dated April 15, 2014 for reference.  
[11] Centura’s scope of work was detailed in Appendix D to the Contract (the  
“Original Scope of Work”). Centura also performed work that fell outside the Original  
Scope of Work and for which it seeks additional compensation.  
[12] The typical sequencing of the work to be performed by the various trades  
engaged to construct a mixed-use tower and the basic nature of the work of a  
framing, drywall, and insulation contractor provides context that is helpful to  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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understanding some of the sources of the friction that developed between Centura  
and Icon. None of this general context was in dispute.  
[13] Typically the trades perform their work in a rational order, with one trade  
following another up the tower on a floor by floor basis. The work is scheduled to  
provide each trade a start date for each floor and a window of time within which to  
complete its work on the floor in question before the floor is turned over to the next  
trade in the sequence.  
[14] After excavation and site preparation, construction typically proceeds in the  
following order:  
1. The concrete installer pours the slabs and curb walls, prepares the perimeter  
edge for the installation of the exterior assembly (in this case, steel stud  
framing), cleans up, and moves up to the next floor.  
2. The framing contractor completes layout and construction of the exterior  
assembly, cleans up, and moves up to the next floor behind the concrete  
installer.  
3. The glazing contractor installs the windows, cleans up, and moves up to the  
next floor behind the framing contractor.  
4. The mechanical contractor completes plumbing rough-in, cleans up, and  
moves up to the next floor behind the glazing contractor.  
5. As the work is being completed on a floor, the concrete trade returns to  
remove shoring and install re-shoring required for the concrete cure. The re-  
shoring remains in place until the concrete has been poured three floors  
above. It is then removed by the concrete trade.  
6. After the re-shoring is removed, the framing trade starts interior layout and  
framing. This includes the framing of shafts, party walls (common walls  
between suites), interior walls (including furring walls, which are thicker than  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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typical to allow more space for work such as rough-ins and insulation to be  
installed in the wall), sills, ceilings, and bulkheads.  
7. As the interior framing proceeds, installation of firestopping in party walls  
commences.  
8. When interior framing is complete, mechanical and electrical rough-in is  
completed.  
9. When rough-in is complete, insulation is installed starting with spray foam  
installation followed by batt insulation and any vapor barriers.  
10.Drywall installation begins after the insulation is installed.  
11.Following drywall installation, the floor is cleaned and drywall deficiencies  
addressed. Corner bead or other finish trims are installed and then tape and  
fill of the drywall commences.  
12.When tape and fill is complete, the floor is cleaned and then turned over to  
the painting contractor.  
[15] Pursuant to A 1.3.1 of the Contract, Centura was to perform its work “in  
accordance with a schedule provided by the Owner at the time of signing the  
Contract”. A schedule for the Project was attached as Appendix B to the Contract  
(the “Original Schedule”). The Original Schedule set out dates and durations of work  
for each trade on each floor of the Project.  
[16] According to the Original Schedule, Centura’s work on the Project was to start  
on March 2, 2015. However, the commencement of construction was delayed from  
the outset for reasons that are not relevant to this dispute. Ultimately, Centura’s work  
on the project commenced on May 21, 2015.  
[17] Kelly Brezovski was Icon’s site superintendent on the Project. Kevin Booth  
was Centura’s first site foreman.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[18] Disputes arose between the parties almost immediately over the slow  
progress of Centura’s work and the reasons for the delay.  
[19] As noted, Centura says Icon’s mismanagement resulted in multiple events  
and circumstances that interfered with its ability to complete its work and gave rise to  
delay and additional costs. Centura’s complaints included but were not limited to the  
following: other trades were delayed which impacted Centura’s ability to ramp up its  
workforce; floors were not turned over to Centura in a ready state which prevented  
its production crews from completing their work efficiently and led to them leaving  
the site; the elevator (skip) used to move workers and material up the tower was  
inadequate; the correct shower design was provided late resulting in the need for  
significant reframing; the reflected ceiling drawings were incomplete which led to  
further reframing; Icon prioritized the work in the commercial space leased to the  
Bank of Montreal which disrupted Centura’s schedule and work sequencing and  
interfered with Centura’s ability to retain production crews on site and achieve  
efficiencies in its work; and spray foam installation was delayed which prevented  
Centura’s work from progressing.  
[20] 601 Main says the primary problem was that Centura had spread itself too  
thin and did not have the workforce required to get the job done; it prioritized other  
projects with the result that its work on the Project suffered from slow progress from  
the beginning and throughout.  
[21]  
In late July 2015, Centura replaced Mr. Booth with Scott Bowie. Mr. Bowie  
reported to Robert Pengelly, Centura’s Operations Manager.  
[22] Notwithstanding Mr. Bowie’s efforts, the problems persisted. Centura asserts  
that the principals of Westbank were not happy about Centura working on the  
Project. Centura says animosity had developed between representatives of  
Westbank and representatives of Centura on a previous job and the animosity  
followed Centura to the Project. Centura says Mr. Bowie was unfairly criticised, there  
was a “chummy attitude” among the other trades to the exclusion of Centura, and  
Centura was set up as the scapegoat for the delays. In contrast, the defendants say  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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there was little Mr. Bowie could do without the necessary workforce so he came up  
with a myriad of complaints in an attempt to deflect responsibility for the delays to  
Icon and/or the other trades, create a misleading record of the cause of the delays,  
and buy Centura time to secure the workers it needed to fulfil its obligations on the  
Project.  
[23] Pursuant to GC 3.5 of the Contract, Icon was to provide Centura with a  
Project schedule, monitor the progress of the work relative to that schedule, and  
update the schedule on a monthly basis. Icon did not do this. No formally revised  
schedule for the Project to reflect the delay in commencement of construction was  
produced by or on behalf of 601 Main. According to Mr. Brezovski, when the  
commencement of a project is delayed, each date in the original schedule simply  
shifts with the individual steps and the durations remaining unchanged. In contrast,  
Mr. Bowie testified that typically a revised schedule is issued to the trades once  
construction actually commences but this was not done for the Project.  
[24] In October 2015, representatives of Icon advised representatives of Centura  
that Centura would not be permitted to move up to level 10 in the tower until  
Centura’s work on lower levels was complete. The defendants say this was a good  
faith effort on Icon’s part to get Centura’s work on the lower floors complete so the  
subsequent trades could progress. Centura says that Icon’s motive for holding  
Centura below level 10 was to simplify the replacement of Centura with a different  
framing, drywall, and insulation contractor. There is no dispute that in October 2015,  
Icon and/or other representatives of 601 Main were in discussions with Crystal  
Consulting Inc. (“Crystal”) about the possibility of Crystal replacing Centura on the  
Project, starting at level 10. However, Crystal was not engaged at that time.  
[25] In the later part of October 2015, the parties exchanged proposed schedules  
that were intended to recover from the delays in the Project up to that time. These  
consultations did not initially result in a schedule that was acceptable to 601 Main.  
On October 28, 2015, 601 Main ordered Centura to provide a schedule pursuant to  
GC 3.5.8 of the Contract which provides:  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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Subject to GC 6.5, if the Trade Contractor does not maintain the progress  
necessary to comply with the Contract and the Project Schedule, the Owner,  
in addition to those rights and remedies provided by law and under the  
Contract Documents (including those rights specifically set forth in GC 7.1)  
may, after consultation with the Trade Contractor, order that the Trade  
Contractor take such actions as the Owner, the Construction Manager or the  
Consultant deems necessary to maintain the progress required by the  
Contract Documents and the Project Schedule, which actions may include,  
but will not be limited to: the provision of a recovery Trade Schedule, the  
supply of additional labour, the provision of additional hours of work or the  
furnishing of additional plant, all at the Trade Contractor’s expense.  
[26] In response to this demand, Centura presented a new schedule on October  
30, 2015, which the parties referred to as the “Recovery Schedule”. There is no  
dispute that the Recovery Schedule was intended to take into account the then state  
of the Project and all the previous delays, regardless of who caused them, and get  
the Project back on track. The Recovery Schedule contained the following  
statement, among others:  
Your [601 Main’s] proposed M&E rough-in schedule does not appear to be  
realistic. Unless these are actual feedbacks from the respective trades, this  
schedule would be considered unreliable and it can potentially upset the  
overall schedule.  
[27] On November 4, 2015, 601 Main accepted the Recovery Schedule. Pursuant  
to the Recovery Schedule, Centura was to complete all its work on the Project by  
January 20, 2016.  
[28] Centura says that the Recovery Schedule was almost immediately  
abandoned by the parties as unrealistic. 601 Main disputes that the Recovery  
Schedule was abandoned.  
[29] The Project continued to experience delays which 601 Main attributes to  
Centura. On January 21, 2016, 601 Main demanded that Centura accelerate its work  
and sought Centura’s agreement to a further revised schedule. Centura did not  
accept this proposed schedule.  
[30] The Contract contained express provisions permitting 601 Main to terminate  
the Contract in various situations. Of particular relevance is GC 6.5.10:  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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Notwithstanding anything to the contrary in GC 6.5, if the Trade Contractor is  
delayed in the performance of the Work for more than 30 days, the Owner  
shall have the right to terminate the Contract and engage another party to  
finish the Work. Upon such termination, the Trade Contractor will be entitled  
to payment only in respect of the Work completed up to the date of  
termination.  
[31] On January 23, 2016, 601 Main exercised its right to terminate the Contract  
pursuant to GC 6.5.10, alleging that Centura was behind both the Original Schedule  
and the Recovery Schedule.  
[32] Centura had been paid $455,879.33 for the work it had performed and the  
materials it had supplied prior to the termination of the Contract.  
[33] On January 15, 25 and 26, 2016, the defendants had the progress of the  
Project documented in a series of digital photographs and interactive floorplans by a  
company called Multivista (the “Multivista Photographs”).  
[34] Crystal was engaged to complete most of Centura’s work. There were two  
parts to Crystal’s contract:  
a fixed-price portion pursuant to which Crystal was to perform boarding on  
levels 8 to 21 (excluding fireproofing); acrylic soffits from level 7; taping on  
levels 7 to 12 (excluding fire taping); concrete seal on levels 8 to 21  
(excluding ceiling prep); framing on levels 20 and 21; and all insulation to  
compete the Project, for $645,000 excluding GST (the “Base Contract”); and  
a time and materials portion which governed everything else Crystal did on  
the Project, including repairing deficiencies in Centura’s work, finishing work  
that Centura had not yet completed and that did not fall within the Base  
Contract, performing extra work not contemplated by the Original Scope of  
Work, and supplying the materials required to perform all of Crystal’s work  
(the “T&M Contract”).  
[35] On March 4, 2016, Centura filed a claim of builders lien for $1,136,593. This  
action was commenced on May 19, 2016.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[36] The Project was finished in August 2016, with the final occupancy permit  
issued on August 30, 2016.  
Positions of the Parties  
The plaintiff’s original position  
[37] Initially, Centura alleged that 601 Main wrongfully terminated the Contract.  
Among other things, Centura submitted that it could not be terminated under GC  
6.5.10 of the Contract for being 30 days delayed because at the time of the  
termination there was no operative schedule and, in any event, GC 6.5.10 could only  
be invoked if the delay was caused by the trade contractor (Centura said the delay  
was caused by others) and after giving the trade contractor notice and a period  
within which to remedy the delay (it is common ground that no such notice or cure  
period was provided).  
[38] Centura also alleged that 601 Main breached an express or implied term of  
the Contract by failing to provide Centura with proper access to and control of the  
site. Specifically, and as already mentioned, Centura says Icon’s mismanagement  
caused a number of events and conditions that interfered with its ability to complete  
its work in a timely way and caused it to incur increased costs.  
[39] In its original closing submissions, Centura asserted that it is owed about  
$630,000 in respect of the work it performed and materials it delivered under the  
Contract to the date of termination (about $820,000 plus GST for work and materials  
within the Original Scope of Work (“Base Contract Work”) and approximately  
$215,000 plus GST for extra work and materials pursuant to change orders  
(“Extras”), less $455,879.33 already paid) (the “Contract Value Claim”). It claimed  
damages of about $310,000 for interference in its work (the “Interference Claim”)  
and lost profits of about $41,000 that it said it would have earned if 601 Main had not  
wrongly terminated the Contract (the “Lost Profit Claim”). It asserted the right to  
interest in accordance with A 5.3 of the Contract (prime plus 2% for the first 60 days  
and prime plus 4% thereafter).  
   
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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The defendants’ original position  
[40]  
The defendants’ position was that 601 Main was entitled to terminate the  
Contract pursuant to GC 6.5.10 for delay caused by Centura. They submitted that at  
the time of the termination of the Contract the governing schedule was the Recovery  
Schedule. They say GC 6.5.10 could be invoked without giving Centura notice or  
any cure period, Centura was more than 30 days behind the Recovery Schedule,  
and the delay was caused by Centura. Alternatively, the defendants submitted that  
601 Main was entitled to terminate the Contract for “fundamental breach”.  
[41] If 601 Main was entitled to terminate the Contract, then the defendants’  
position was that they were entitled to recover from Centura damages for breach of  
contract in the amount of $707,216.58. This amount comprised the incremental  
increased costs that were incurred to complete Centura’s scope of work  
($157,341.60 plus GST) and additional insurance, financing and other overhead  
expenses incurred as a result of what they say was a four-month delay in completing  
the Project ($516,198 plus GST).  
[42] If 601 Main was not entitled to terminate the Contract, then the defendants’  
position was that:  
(a) Centura was entitled to be paid for work it performed and materials it  
delivered under the Contract to the date of termination (Base Contract Work  
and some of the claimed Extras), less the amount incurred by the defendants  
to have Crystal correct deficiencies in that work. The defendants quantified  
this aspect of Centura’s claim at about $290,000, valuing Centura’s work  
before considering deficiencies at about $450,000 after accounting for the  
$455,879.33 that Centura had already been paid, against which the  
defendants submitted they were entitled to a setoff of $157,594.40  
representing the cost to repair deficiencies.  
(b) The defendants could, in theory, be liable for damages for breach of contract  
for delay caused by them, but Centura failed to establish that the defendants  
caused any delay or are responsible for any event that resulted in Centura  
 
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incurring increased costs. In any event, the defendants submitted that several  
provisions of the Contract operated to bar recovery for any delay or impact  
caused by them. The defendants say that among other contractual bars, GC  
6.5.4 of the Contract barred recovery unless Centura provided notice of a  
claim arising from an owner-caused delay within 10 working days of the  
commencement of the delay or impact with such notice to include particular  
information, and Centura failed to provide any such notice.  
[43] Irrespective of whether 601 Main was entitled to terminate the Contract, the  
defendants’ position is that the builders lien Centura filed was in an amount it knew  
was exaggerated, and that Centura exaggerated the amount to exert financial  
pressure on the defendants and thereby create a litigation advantage. The  
defendants say this grounds a claim for damages for abuse of process which they  
quantify at $262,525.32, representing interest, at the rate stipulated in A 5.3 of the  
Contract as applicable to amounts owing under the Contract, on the amount by  
which they say the lien was inflated ($814,032).  
Change in positions on last day of trial  
[44] During reply submissions on the last day of the trial, Centura abandoned its  
claim that the termination of the Contract was wrongful. Centura submitted that 601  
Main was entitled to terminate the Contract under GC 6.5.10 because the progress  
of Centura’s work was delayed by more than 30 days, although Centura maintained  
that it was not at fault for the delay. Centura submitted that GC 6.5.10 is a “no fault”  
provision pursuant to which 601 Main had the right to terminate the Contract for  
delay exceeding 30 days, irrespective of the cause of the delay.  
[45] As a consequence of this change in position, Centura acknowledged that the  
Lost Profit Claim, which was based on what Centura previously said was the  
wrongful termination of the Contract, could not succeed. Centura submitted that this  
change in positon did not affect the Contract Value Claim or the Interference Claim,  
and that those claims fell within the second sentence of GC 6.5.10, which preserved  
 
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Centura’s entitlement to payment “in respect of the Work completed up to the date of  
termination”.  
[46] In addition, Centura asserted that by choosing to terminate the Contract  
under GC 6.5.10, 601 Main waived any claim for additional costs that arose from the  
termination of the Contract. Centura’s position regarding the scope of this alleged  
waiver was not clear to me. Specifically, it was not clear whether Centura was  
asserting that the defendants were precluded from setting off the cost of repairing  
deficiencies in Centura’s work and also any incremental increased costs that were  
incurred to complete Centura’s scope of work, or just the latter. As I understood it,  
Centura did not take the position that by invoking GC 6.5.10, 601 Main waived its  
claim for damages for breach of contract flowing from delay caused by Centura, but  
Centura says 601 Main did not establish that Centura was the cause of any delay.  
[47] As discussed, the defendants initially argued for a construction of GC 6.5.10  
that gave 601 Main the right to terminate the Contract for delay caused by Centura.  
Defence counsel was taken by surprise by Centura’s late concession that 601 Main  
had the right to terminate the Contract under GC 6.5.10. In surreply, defence  
counsel observed that Centura’s change of position meant that 601 Main’s right to  
terminate the Contract is undeniable and the focus must shift to a consideration of  
the consequences of 601 Main invoking that right.  
[48] 601 Main submitted that its termination of the Contract pursuant to GC 6.5.10  
did not have the effect of curtailing its right to compensation for the additional costs  
that arose from the termination of the Contract. Further, if 601 Main had the right to  
terminate the Contract under GC 6.5.10, then the defendants say Centura’s  
recourse is expressly limited by the second sentence of GC 6.5.10 to “payment only  
in respect of the Work completed up to the date of termination” and neither the  
Interference Claim nor the Lost Profit Claim falls within that limiting language.  
Issues  
[49] As a result of the late change in Centura’s position, it is not necessary to  
determine whether 601 Main was entitled to terminate the Contract under GC 6.5.10.  
 
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It is conceded that it was entitled to do so. However, it is not clear whether the  
parties agree that GC 6.5.10 is a “no fault” provision – in other words, whether it  
gives 601 Main the right to terminate the Contract for delay irrespective of the cause  
of the delay.  
[50] As noted, Centura ultimately submitted that GC 6.5.10 was a “no fault”  
termination provision. Ironically, the initial position advanced on behalf of 601 Main  
was that its right to terminate the Contract pursuant to GC 6.5.10 depended on  
Centura being at fault for the delay and arose from “a specifically identified breach  
[of contract by Centura] relating specifically to delays”. In its written closing  
submission, in response to the suggestion that GC 6.5.10 might give rise to a right to  
terminate for delay irrespective of fault, 601 Main wrote:  
It was also argued that perhaps this was intended to be some sort of a “no  
fault” termination provision, however such an interpretation would be  
inconsistent with the fact that there already exists such a provision at GC  
7.1.7, which states:  
The Owner may terminate this Contract for its convenience at any  
time and without cause, upon giving not less than 30 days prior notice  
to the Trade Contractor. In this event the Owner shall pay to the Trade  
Contractor all amounts due to the Trade Contractor on account of the  
Contract price earned to that date.  
[51] In oral submissions made before Centura changed its position on the validly  
of the termination, defence counsel argued that GC 7.1.7 would only be necessary if  
GC 6.5.10 could only be invoked in circumstances where the trade contractor was at  
fault for the delay. Whether that remained 601 Main’s position after the validity of the  
termination was conceded is not clear.  
[52] It is necessary to decide whether GC 6.5.10 is or is not a “no fault”  
termination provision because the answer to that question shapes the framing and  
analysis of the other issues. The live issues, framed broadly, are:  
1. Was 601 Main entitled to terminate the Contract pursuant to GC 6.5.10  
irrespective of whether Centura was at fault for or the cause of the delay?  
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2. What, if anything, is Centura entitled to be paid in respect of the Contract  
Value Claim?  
3. What, if anything, is Centura entitled to be paid in respect of the Interference  
Claim?  
4. Have the defendants established that Centura breached the Contract and, if  
so, what damages flow from the established breach(es)?  
5. Did Centura file a claim of builders lien in an amount that it knew or ought to  
have known was exaggerated and, if so, are the defendants entitled to  
damages for abuse of process?  
6. What is the appropriate rate and method for calculating interest to be paid on  
any amounts found owing to either party?  
7. What is the appropriate costs award?  
Discussion  
Credibility  
[53] Before addressing the substantive issues, I will briefly address the credibility  
of the key witness of each of the parties.  
[54] Mr. Bowie was Centura’s primary witness. He had a tendency to exaggerate.  
Given the complex nature and large scope of the Project, it is extremely likely that  
Centura caused or contributed to some of the problems that arose on the site but Mr.  
Bowie rarely conceded any fault. Most significantly, I was satisfied that a  
memorandum he prepared to record the facts related to several particular problems  
that he claimed interfered with Centura’s work was misleading in some respects and  
based, in part, on an email that he altered to align with his narrative. He maintained  
in his testimony that the memorandum was correct, to the best of his knowledge, but  
I did not believe that. Unfortunately, these problems undermined Mr. Bowie’s  
credibility to an extent that caused me to conclude I could not rely on his evidence  
except where it was corroborated by evidence I did accept.  
   
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 17  
[55] Mr. Brezovski’s testimony was more measured and reasonable. He readily  
acknowledged when his memory was less than clear and when he did not have  
personal knowledge of a particular issue. He made admissions against interest. I  
had no concerns about his credibility, but the usefulness of some of his testimony  
was limited by a lack of clarity in his recollection or a lack of personal knowledge.  
Was 601 Main entitled to terminate the Contract pursuant to GC 6.5.10  
irrespective of whether Centura was at fault for or the cause of the  
delay?  
[56] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 [Sattva], the  
Court endorsed a “practical, common-sense approach” to the interpretation of  
contracts, “not dominated by technical rules of construction”, with the meaning of the  
words “often derived from a number of contextual factors”. The principles, as drawn  
from Sattva, include the following:  
a) the goal of contractual interpretation is to ascertain the objective intentions of  
the parties (para. 55);  
b) in ascertaining the parties’ intentions, a practical, common-sense approach  
not dominated by technical rules of construction is to be adopted (para. 47);  
c) the contract must be read as a whole, giving the words used their ordinary  
and grammatical meaning, consistent with the surrounding circumstances  
known to the parties at the time of contracting (para. 47);  
d) the surrounding circumstances (such as the purpose of the contract and the  
nature of the relationship created by it) inform the analysis because words in  
isolation do not have an immutable or absolute meaning and often take their  
meaning from the context (paras. 4748);  
e) the goal in considering the surrounding circumstances is to acquire a deeper  
understanding of the objective intentions of the parties, but the interpretation  
of a written provision must always be grounded in the text and read in light of  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 18  
the entire contract; the surrounding circumstances cannot be used to deviate  
from the actual words used (para. 57); and  
f) in ascertaining the surrounding circumstances the only evidence that may be  
relied upon is objective evidence of the background facts at the time the  
contract was made; in other words, knowledge that was or reasonably ought  
to have been within the knowledge of both parties at or before the date of  
contracting (para. 58).  
[57] With these principles in mind, I turn to the question at hand: does GC 6.5.10  
give 601 Main the right to terminate the Contract for delay of more than 30 days  
irrespective of the cause of or fault for the delay? For ease of reference, GC 6.5.10  
provides:  
Notwithstanding anything to the contrary in GC 6.5, if the Trade Contractor is  
delayed in the performance of the Work for more than 30 days, the Owner  
shall have the right to terminate the Contract and engage another party to  
finish the Work. Upon such termination, the Trade Contractor will be entitled  
to payment only in respect of the Work completed up to the date of  
termination.  
[58] I start with the ordinary and grammatical meaning of the words in the  
provision. The key words are “if the Trade Contractor is delayed in the performance  
of the Work”. The first point to note is that there are no words attributing blame for or  
referencing the cause of the delay; fault or cause language has not been included.  
[59] The significance of the omission of fault or cause language is heightened by a  
consideration of the Contract as a whole. Other provisions in the Contract that  
pertain to delay do contain fault or cause language which suggests that when the  
parties intended the application of a delay provision to be limited to circumstances  
triggered by a particular cause or the fault of a particular party, they did so expressly.  
For example, GC 6.5.1 applies where the trade contractor is delayed by “an event  
outside its reasonable control”, GC 6.5.3 applies where the trade contractor is  
delayed by “an event of default or neglect caused solely by the Owner”, and GC  
7.1.2 applies where the trade contractor “neglects to prosecute the Work in  
accordance with the Contract”.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[60] I do not agree with the defendants’ submission that interpreting GC 6.5.10 as  
a no fault termination provision would render GC 7.1.7 superfluous. GC 7.1.7 is a no  
fault termination provision but it has broader application than does GC 6.5.10. GC  
7.1.7 permits 601 Main to terminate the Contract for any reason and requires 601  
Main to give the trade contractor at least 30 days notice of termination. In contrast,  
GC 6.5.10 may be invoked only where the trade contractor is delayed by more than  
30 days, and it does not require any notice. The two provisions serve different  
purposes.  
[61] Finally, interpreting GC 6.5.10 as a no fault termination provision is consistent  
with the surrounding circumstances that is, the purpose of the Contract and the  
nature of the relationship created by it. The purpose of the Contract is to secure the  
completion, on clear terms, of a substantial component of the work required to build  
a multi-level mixed-use tower. This an endeavor that is complicated by nature and  
time sensitive. 601 Main, as developer, has a strong interest in ensuring that the  
work progresses at an appropriate pace and that the overall construction schedule is  
met. The work to be performed by the various trades follows a logical sequence and  
a delay in the performance of one trade’s work can have a cumulative effect. As  
demonstrated by this case, it can be very difficult to disentangle the various causes  
of any particular delay or impact and even more so to attribute fault. In this case,  
representatives of the parties spent months in conflict characterized by an ongoing  
litany of accusations and complaints against each other about the causes of delays.  
As an experienced developer and contractor, the parties would have been aware of  
the potential for this kind of conflict. In these circumstances, a provision that allows  
an owner to terminate its contract with one trade contractor without notice where  
there has been a significant delay in that trade’s work, without having to prove the  
cause of or fault for the delay, and simply pay the trade contractor in respect of the  
work already completed, is objectively sensible.  
[62] For these reasons, it is my view that GC 6.5.10 is a “no fault” termination  
provision; in other words, pursuant to GC 6.5.10, 601 Main had the right to terminate  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 20  
the Contract for a delay in the performance of Centura’s work of more than 30 days  
irrespective of the cause of or fault for the delay.  
What, if anything, is Centura entitled to be paid in respect of the  
Contract Value Claim?  
[63] The Contract Value Claim concerns the value of the work Centura performed  
and materials it delivered under the Contract to the date of termination. It is  
comprised of two components: Base Contract Work and Extras. As noted, the  
Contract Value Claim was quantified by Centura at about $630,000 comprised of  
about $820,000 plus GST at 5% for Base Contract Work and approximately  
$215,000 plus GST at 5% for Extras, less the $455,879.33 already paid.  
[64] Leaving aside the issue of the cost of correcting deficiencies in Centura’s  
work, to which I will return, the defendants’ original closing submission suggested  
that Centura was only entitled to be paid for the work it performed and materials it  
delivered under the Contract to the date of termination if 601 Main was not entitled to  
terminate the Contract. From the oral submissions made after Centura’s change in  
position concerning the validity of the termination pursuant to GC 6.5.10, it appeared  
(but was not entirely clear) that the defendants acknowledged that Centura was  
entitled to be paid for the work it performed and materials it delivered under the  
Contract to the date of termination (less the amount incurred by them to have Crystal  
correct deficiencies in that work) and the only issue concerned the quantum of  
Centura’s entitlement.  
[65] Given the uncertainty in the defence position, I start by finding that upon the  
termination of the Contract by 601 Main, Centura became entitled to payment “in  
respect of the Work completed up to the date of termination”, pursuant to the second  
sentence of GC 6.5.10. “Work” is defined in the Contract as “the total construction  
and related services required by the Contract Documents”.  
[66] At this stage I am dealing only with the Contract Value Claim, which clearly  
falls within the second sentence in GC 6.5.10. The live questions are:  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 21  
1. What is the value of the Base Contract Work?  
2. To what extent has Centura established its claim for Extras?  
3. Is 601 Main entitled to a set off for the cost of repairing deficiencies in  
Centura’s work?  
4. If so, have the defendants established that there were deficiencies in  
Centura’s work and that those deficiencies had a quantifiable impact on the  
value of Centura’s work?  
[67] Each of the parties tendered expert evidence concerning the value of the  
Base Contract Work and Extras. Centura’s expert, Evan Stregger, is an experienced  
claims consultant and professional quantity surveyor. As a professional quantity  
surveyor, he has expertise in construction scheduling, and analyzing and pricing  
construction projects. His opinions concerning the value of the Base Contract Work  
and Extras were reflected in a report titled “Review of Value of Work …” dated  
September 18, 2018 (“Review of Value Report”), which was a compilation of earlier  
opinions he had provided. The defence expert, Ken King, is also an experienced  
professional quantity surveyor. He provided an opinion of the value of the Base  
Contract Work and some of the Extras as of January 26, 2016, and he commented  
on Mr. Stregger’s opinions. These opinions were reflected in a report dated August  
23, 2018.  
[68] Mr. Stregger’s opinions about the value of the Base Contract Work and  
Extras, as set out in his Review of Value Report, were based on representations  
from Centura as well as a variety of documents, including progress photographs  
taken by Richard Lim of Centura, photographs taken by Mr. Bowie on Centura’s last  
day on the site, and photographs provided by 601 Main. He did not review the  
Multivista Photographs prior to forming the opinions expressed in the Review of  
Value of Work report.  
[69] Mr. Stregger’s approach was to assess the state of completion of each  
component of the Base Contract Work on each level of the tower, in percentage  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 22  
terms, and then to apply the corresponding value for that component of Centura’s  
work, as stated in the schedule of values for the Contract, to derive an overall value  
for the Base Contract Work. With respect to the Extras, he reviewed the change  
orders underlying Centura’s claim for Extras, adopted or largely adopted Centura’s  
view of the state of completion of the relevant work in percentage terms, and then  
applied the price of the completed work as claimed on the change order, to derive an  
overall value for the Extras. This was a purely mathematical exercise. In his Review  
of Value Report, he valued the Base Contract Work at $888,448 (before GST) and  
the Extras at $196,512.46 (before GST).  
[70] Mr. King’s opinions about the value of Centura’s work, as set out in his  
August 23, 2018 report, were based on a variety of documents and photographs,  
including the Multivista Photographs, and to some extent representations from the  
defendants.  
[71] Mr. King’s approach to valuing the Base Contract Work was similar to that of  
Mr. Stregger. His opinion was that the Base Contract Work had a value of $787,230  
(before GST). The reason for the difference between his opinion of the value of the  
Base Contract Work and that of Mr. Stregger was underlying differences in their  
respective assessments of the state of completion of some of the components of the  
Base Contract Work. In his August 23, 2018 report, Mr. King took no issue with  
Mr. Stregger’s methodology, but he expressed the view that Mr. Stregger overstated  
the extent to which certain components of the Base Contract Work had been  
completed. Mr. King’s approach to valuing the Extras was to review contract  
documents, drawings, and Icon’s own assessment as reflected in a spreadsheet  
provided to him by the defendants (“Icon’s Spreadsheet”) to determine whether the  
work contemplated by each change order fell outside the Original Scope of Work. He  
relied heavily on Icon’s Spreadsheet in doing so. Mr. King did not address all the  
claimed Extras. He concluded that the Extras he did consider had a value of  
$77,647.08.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[72] Mr. Stregger responded to Mr. King’s August 23, 2018 report in a reply report  
dated February 27, 2019. Prior to preparing the February 27, 2019 reply report,  
Mr. Stregger reviewed the Multivista Photographs. Having done so, his assessment  
of the value of Base Contract Work decreased to $858,040 excluding GST. He also  
expressed the view that some variance can be expected when using photographs to  
assess the extent to which this kind of work is complete and opined that the value of  
the Base Contract Work “probably lies somewhere between [his] assessed value of  
$858,040 and [Mr. King’s] value … of $787,230”. Although not entirely clear, it  
appeared that his assessment of the value of the Extras did not change in any  
material way.  
[73] There were aspects of Mr. Stregger’s testimony during cross-examination that  
caused me to question the reliability of his evidence. He admitted that before  
completing the Review of Value Report, he was given access to a very large number  
of progress photographs that he did not review. Those photographs would have  
informed his analysis and he did not provide a reasonable explanation for not  
reviewing them. More concerning, in his direct evidence he indicated that he  
independently assessed the state of completion of the Extras; however, in cross-  
examination he reluctantly admitted that he did not do so but rather accepted what  
he was told by Centura about the state of completion of the Extras. Mr. King  
adopted, or largely adopted, the defence position with respect to whether claimed  
Extras fell within the Original Scope of Work, but this was apparent from his report  
where, as noted, he expressly referred to Icon’s Spreadsheet. To be clear, there is  
nothing objectionable about an expert expressing opinions based on assumed facts  
to the contrary that is what expert witnesses are supposed to do. What is  
objectionable is an expert suggesting he has formed an independent opinion about  
something when he has merely adopted the party’s position. This caused me to  
prefer Mr. King’s opinions over Mr. Stregger’s opinions where they differ.  
[74] In cross-examination, Mr. King acknowledged that an adjustment should be  
made to his assessment of one item that would increase his opinion about the value  
of the Base Contract Work to about $794,000 before GST. On the basis of his  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 24  
evidence, I find that the value of the Base Contract Work, before consideration of  
deficiencies, is $794,000 plus GST of 5%.  
[75] I turn now to the Extras.  
[76] There is no dispute that the parties adopted two methods of approval of extra  
work. One method was through a formal request and site instruction followed by the  
issuance of a change order ultimately signed on behalf of Westbank. The other  
method was informal and initiated on site. Under this informal method, Centura  
would usually present an extra work confirmation form to Icon and, if approved by  
Mr. Brezovski, Centura would proceed with the work. On a few occasions there was  
no extra work confirmation form prepared, but the work was the subject of  
contemporaneous email correspondence between the parties. Each of the extra  
work confirmation forms stated that it was “confirm[ing] that the following work is  
extra to our Contract and will be charged accordingly”. Mr. Brezovski  
contemporaneously initialled each of the extra work confirmation forms next to the  
words “Received & Acknowledged By”. I will refer to each of the change orders,  
extra work confirmations, and email exchanges as a “Change Order”, using the  
identification numbers ultimately assigned to them by Centura.  
[77] There is little if any direct conflict in the expert evidence concerning the  
Extras. Significantly, there is no dispute about the extent to which the Extras were  
completed. Mr. King’s valuation of Extras departs from Centura’s claim because he  
adopted the defence position with respect to whether claimed Extras fell within the  
Original Scope of Work. Mr. Stregger did not address that point.  
[78] Centura’s claim to be compensated for the Extras is based on 53 Change  
Orders. (Initially it was based on 54 but one, #11r1, was withdrawn by Centura.)  
Ultimately, only 21 of the 53 Change Orders was in dispute.  
[79] There is no dispute that Change Orders #1 though #5 and #32 were formally  
approved and that Centura is owed $41,000 in relation to those, before  
consideration of any deficiencies.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[80] Change Orders #6r2 ($1,782), #7 ($172), #8r1 ($822), #9 ($162), #18r1  
($383), #33 ($1,653), and #51 ($4,762) were the subject of site instructions. The  
defendants ultimately conceded that Centura is owed a total of $9,736 with respect  
to those, before consideration of any deficiencies. The only issue with respect to  
these concerned #6r2. Mr. King expressed the view that Centura was entitled to the  
full amount of that Change Order ($11,136) but Centura’s evidence was that the  
work was only 16% complete at the time the Contract was terminated. In the  
circumstances, I have attributed a value of $1,782 to Change Order #6r2 (16% of  
$11,136).  
[81] Change Orders #12r2 (-$11,293), #14r1 ($7,116), #15r1 ($1,616), #16r1  
($787), #20r1 ($11,403), #21r1 ($484), #23r1 ($890), #24r1 ($3,550), #35 ($303),  
#37 ($2,187), #39 ($1,416), #40 ($1,786), #41r1 ($1,355), and #50 ($3,262) were  
the subject of extra work conformation forms approved by Mr. Brezovski on site. The  
defendants ultimately conceded that Centura is owed a total of $24,862 with respect  
to those, before consideration of any deficiencies.  
[82] Change Orders #27r2 ($19,960), #28r1 ($3,843), #29r1 ($993), #31r1  
($2,864), and #34r1 ($1,367) were the subject of contemporaneous email  
exchanges. The defendants ultimately conceded that Centura is owed a total of  
$29,027 with respect to those, before consideration of any deficiencies.  
[83] The Change Orders in dispute are #10r1, #13r2, #17r2, #19r2, #22r2, #25r2,  
#26r1, #30r1, #36, #38, #42, #43, #44, #45, #46, #47, #48, #49, #52, #53, and #54.  
[84] Change Order #10r1 concerned the replacement of hollow steel framing with  
regular steel framing. The amount claimed is $4,967. An extra work confirmation  
form was prepared by Centura and contemporaneously approved by Mr. Brezovski.  
There is no dispute that the work was done. Mr. King opined that there was too  
much time spent on the work and he valued it at only $2,607. However,  
Mr. Brezovski testified that when he signed the extra work confirmation form he  
considered the number of hours quoted to be appropriate. Mr. Brezovski was the  
Icon representative with the most direct involvement in the work on the Project as it  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 26  
was being performed. Mr. King agreed, when questioned about a different Change  
Order, that the circumstances on the ground inform the assessment of whether any  
particular work is appropriately characterized as extra work. For these reasons, I  
prefer Mr. Brezovski’s views over Mr. King’s views where they do not align. I am  
satisfied that Centura has established its claim in relation to Change Order #10rl.  
[85] Change Order #13r2 concerned framing and boarding in the vestibule in the  
Bank of Montreal space. The amount claimed is $5,663. There is no dispute the  
work was done. An extra work confirmation form was prepared by Centura and  
contemporaneously approved by Mr. Brezovski. Mr. King rejected this claim, but  
based entirely on Icon’s Spreadsheet on which Mr. Brezovski noted that he  
considered this to be “base building”. In cross-examination, Mr. Brezovski explained  
that there was extra work performed by Centura in the vestibule and his comment on  
Icon’s Spreadsheet reflected a concern that Centura was claiming all the work in the  
vestibule as extra work. He said he wanted someone to confirm the amount of the  
claim. There is no evidence that anyone did confirm his suspicion that the claim was  
inflated. During his examination for discovery, he described this work as in relation to  
the “nightmare vestibule”, confirmed he signed the extra work confirmation form at  
the time, acknowledged that Centura definitely made changes in that area, and  
agreed there definitely was extra work. In the circumstances, I am satisfied that  
Centura has established its claim in relation to Change Order #13r2.  
[86] Change Order #17r2 concerned the addition of furring walls. The amount  
claimed is $3,093. There is no dispute that the work was done. An extra work  
confirmation form was prepared by Centura and contemporaneously approved by  
Mr. Brezovski. Mr. King rejected this claim based on Icon’s Spreadsheet on which  
Mr. Brezovski noted that he considered this to be “base” work. However, in cross-  
examination, Mr. Brezovski acknowledged that this claim did reflect extra work.  
During his examination for discovery, he confirmed that he actually wrote a note on  
the extra work confirmation form that included “NIC”, which was his notation for “not  
in contract”. In the circumstances, I am satisfied that Centura has established its  
claim in relation to Change Order #17r2.  
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[87] Change Order #19r2 concerned repairs to walls in the Bank of Montreal  
space. The amount claimed is $476. There is no dispute the work was done. An  
extra work confirmation form was prepared by Centura and contemporaneously  
approved by Mr. Brezovski. Mr. King rejected this claim based on Icon’s  
Spreadsheet on which Mr. Brezovski acknowledged this work was “touch up for  
trade damage”, but also noted that he saw it as “base building walls”. In cross-  
examination, Mr. Brezovski said that all he meant by that note was that someone  
should check whether the work fell within the Contract. There is no evidence that  
anyone did check. During his examination for discovery, Mr. Brezovski indicated that  
this was extra work. I am satisfied that Centura has established its claim in relation  
to Change Order #19r2.  
[88] Change Order #22r2 concerned the installation of a wall. The amount claimed  
is $2,038. There is no dispute the work was done. An extra work confirmation form  
was prepared by Centura and contemporaneously approved by Mr. Brezovski.  
Mr. King rejected this claim based on Icon’s Spreadsheet on which Mr. Brezovski  
noted that this was a “base building wall shown on drawings”. However, in cross-  
examination, Mr. Brezovski testified that he agreed this was extra work because  
there was a site instruction. I am satisfied that Centura has established its claim in  
relation to Change Order #22r2.  
[89] Change Order #25r2 concerned the installation of shaft walls around pipes  
and other mechanical items. The amount claimed is $4,351. There is no dispute the  
work was done. An extra work confirmation form was prepared by Centura and  
contemporaneously approved by Mr. Brezovski. Mr. King rejected this claim based  
on Icon’s Spreadsheet on which Mr. Brezovski noted this was “base building on  
drawings”. In cross-examination, Mr. Brezovski said that he considered this work to  
be part of the base building but he did not know whether it was extra to the work that  
Centura “tendered on”. During his examination for discovery, he indicated that this  
work could have been temporary and required to achieve an occupancy permit for a  
particular area. He wrote the note “OP Requirements” on the extra work confirmation  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 28  
form. I am satisfied that Centura has established its claim in relation to Change  
Order #25r2.  
[90] Change Order #26r1 concerned the installation of a shaft wall. The amount  
claimed is $2,334. There is no dispute the work was done. An extra work  
confirmation form was prepared by Centura and contemporaneously approved by  
Mr. Brezovski. Mr. King rejected this claim based on Icon’s Spreadsheet on which  
Mr. Brezovski again noted this was “base building on drawings”. As already noted,  
he testified that this notation reflected his observation but he did not know whether it  
was extra to the work that Centura “tendered on”. I am satisfied that Centura has  
established its claim in relation to Change Order #26r1.  
[91] Change Order #30r1 concerned a revision to a shaft and the addition of a  
shaft. The amount claimed is $993. There is no dispute the work was done. Mr. King  
rejected this claim based on Icon’s Spreadsheet on which Mr. Brezovski again noted  
this was “base building”. There is no signed extra work confirmation form in support  
of this claim. There is no site instruction or other documentation indicating that it was  
approved as an extra at the time. In the circumstances, I am not satisfied that  
Centura has established its claim in relation to Change Order #30r1.  
[92] Change Order #36 concerned the addition of sills in the Bank of Montreal  
vestibule. The amount claimed is $2,798. There is no dispute the work was done. An  
extra work confirmation form was prepared by Centura and contemporaneously  
approved by Mr. Brezovski. Mr. King rejected this claim based on Icon’s  
Spreadsheet. However, he also acknowledged that whether any particular item  
reflects extra work depends on the circumstances on the ground. In cross-  
examination, Mr. Brezovski conceded that this was legitimate extra work. In the  
circumstances, I am satisfied that Centura has established its claim in relation to  
Change Order #36.  
[93] Change Order #38 concerns the completion of shafts in the parkade and  
loading bay. The amount claimed is $9,299. There is no dispute the work was done.  
An extra work confirmation form was prepared by Centura and contemporaneously  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 29  
approved by Mr. Brezovski. Mr. King rejected this claim based on Icon’s  
Spreadsheet. However, Mr. Brezovski acknowledged, in his examination for  
discovery, that he approved this as extra work noting that “it must have made sense  
at the time”. I am satisfied that Centura has established its claim in relation to  
Change Order #38.  
[94] Change Orders #42, #43, #44, and #45 concern repairs and/or out of  
sequence work performed after the work of other trades had been finished. The total  
amount claimed in relation to these Change Orders is $12,499. There is no dispute  
the work was done. Extra work confirmation forms were prepared by Centura and  
contemporaneously approved by Mr. Brezovski for this work. Mr. King rejected these  
claims based on Icon’s Spreadsheet which indicated that they reflected a failure on  
Centura’s part to coordinate its work with that of the other trades. However, Mr. King  
also said that determining whether this work was or was not appropriately  
characterized as extra required him to “get into the head of the site superintendent”.  
The site superintendent, Mr. Brezovski, acknowledged during his discovery that he  
approved this as extra work at the time. I am satisfied that Centura has established  
its claims in relation to Change Orders #42, #43, #44, and #45.  
[95] Change Orders #46, #47, #48, and #49 concern the addition of furring walls  
and sills around the perimeter of the building. The total amount claimed in relation to  
these Change Orders is $19,613. There is no dispute the work was done. Extra work  
confirmation forms were prepared by Centura and contemporaneously approved by  
Mr. Brezovski for this work. Mr. King rejected these claims based on Icon’s  
Spreadsheet which indicated that they were not accepted because the work was  
contemplated by the drawings. However, during his examination for discovery,  
Mr. Brezovski conceded that this work reflected additional furring walls and that it  
was appropriately characterized as extra work. I am satisfied that Centura has  
established its claims in relation to Change Orders #46, #47, #48, and #49.  
[96] Mr. King did not address Change Orders #52, #53, or #54. The total amount  
claimed in relation to these is $22,523. There is no dispute the work was done.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 30  
Change Orders #52 and #53 were the subject of extra work confirmation forms  
prepared by Centura and contemporaneously approved by Mr. Brezovski, while #54  
was the subject of contemporaneous email correspondence between the parties.  
During his examination for discovery, Mr. Brezovski acknowledged that at the time  
the work reflected in these Change Orders was performed, he considered it to be  
legitimate extra work. I am satisfied that Centura has established its claims in  
relation to Change Orders #52, #53 and #54.  
[97] For these reasons, I find that the total value of the Extras, before  
consideration of deficiencies, is $194,279 before GST.  
[98] To this point, Centura has established that the Base Contract Work had a  
value of $794,000 plus GST and that the Extras had a value of $194,279 plus GST.  
The next question is whether, in quantifying its entitlement pursuant to GC 6.5.10 to  
payment “in respect of the Work completed up to the date of termination”, it is  
necessary to deduct or set off the value of deficiencies in that work.  
[99] Again, after changing its position on the validity of the termination, Centura  
asserted that by choosing to terminate the Contract under GC 6.5.10, 601 Main  
waived any claim for additional costs that arose from the termination of the Contract.  
However, as mentioned, it was not clear whether Centura was asserting that the  
defendants were precluded from setting off the cost of repairing deficiencies in  
Centura’s work or only the incremental increased costs that were incurred to  
complete Centura’s work. In the circumstances, it is necessary for me to decide  
whether 601 Main is entitled to set off the cost of correcting deficiencies in Centura’s  
work when quantifying Centura’s Contract Value Claim. In other words, is a set off  
for deficiencies a component of quantifying Centura’s entitlement pursuant to GC  
6.5.10 to payment “in respect of the Work completed up to the date of termination”?  
[100] As noted, the definition of “Work” in the Contract is “the total construction and  
related services required by the Contract Documents”. With that definition in mind,  
Centura is entitled by GC 6.5.10 to payment “in respect of [the total construction and  
related services required by the Contract Documents] completed up to the date of  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 31  
termination”. In other words, Centura is entitled to payment for services it provided  
as contemplated by the Contract.  
[101] I have no difficulty concluding that, pursuant to the Contract, 601 Main has a  
prima facie right to a set off in respect of costs it incurred to correct deficiencies in  
Centura’s work. In other words, the value of Centura’s work at the time of the  
termination necessarily reflects deficiencies in it at that time.  
[102] It almost goes without saying that it is an implied term of a construction  
contract that the work is to be done in a good and workmanlike manner: see  
Turano’s Home Improvement Inc. v. Stern, 2018 ONSC 201 at para. 54. Further,  
there are provisions in the Contract that make it clear that Centura’s right to payment  
for its work is subject to 601 Main’s right to withhold payment for defective and  
delayed work:  
GC 2.4.3 provides:  
If in the opinion of the Construction Manager it is not expedient to correct  
defective work or work not performed as provided in the Contract Documents,  
the Owner may deduct from the amount otherwise due to the Trade  
Contractor the difference in value between the work as performed and that  
called for by the Contract Documents. If the Owner and the Trade Contractor  
do not agree on the difference in value, they shall refer the matter to the  
Construction Manager for a finding.  
GC 3.5.5 provides:  
Should the Trade Contractor fail to complete the Work under this Contract  
within the time specified, the Owner will be entitled to make deductions from  
payments due to the Trade Contractor to compensate the Owner for the  
following:  
(d) any other costs claimable at law and provable by the Owner,  
and the Owner shall be entitled to set all such costs off against any amounts  
that would otherwise have been owing to the Trade Contractor pursuant to  
the Contract.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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GC 5.8.3 provides:  
The Owner shall have the right to set off any amounts claimed by the Owner  
hereunder against any amounts owed or claimed by the Trade Contractor  
hereunder.  
[103] Similar provisions have been held to preserve an owner’s right of set off in  
relation to delays and deficiencies: Swagger Construction Ltd. v. U.B.C. et al, 2000  
BCSC 1839 and Centura Buildings Systems Ltd. V Cressey Whistler Project Corp.,  
2002 BCSC 1220.  
[104] Citing RPC Construction Ltd. v. Zhiyi Zhou, 2017 ONSC 4044 [RPC  
Construction], Centura argued that 601 Main lost its right to a set off for deficiencies  
by failing to provide Centura with the opportunity to correct the deficiencies. The  
defendants addressed this point before Centura changed its position on the validity  
of the termination of the Contract. The defendants argued that even if 601 Main was  
not entitled to terminate the Contract, they were entitled to a set off for correcting  
deficiencies and their obligation to provide Centura with the opportunity to remedy  
deficiencies arose only where it was reasonable to do so. They relied on Jozsa v.  
Charlwood-Sebazco, 2016 BCSC 78.  
[105] I observe that in both RPC Construction and Jozsa, as well as the cases cited  
in Jozsa on this point (Wiebe v. Braun, 2011 MBQB 157 and Obad (c.o.b. Rockwood  
Drywall) v. Ontario Housing Corp., [1981] O.J. No. 282), the party seeking a set off  
for deficiencies was found to have wrongly terminated the contract: RPC  
Construction at para. 74, Jozsa at para. 65, Wiebe at para14, and Obad at paras.  
22-23 and 31.  
[106] Whether the obligation to provide a contractor with an opportunity to correct  
deficiencies arises when the contract has been validly terminated was not directly  
addressed by the parties. Nevertheless, it is my view that the intention of the parties  
as reflected in the Contract was that 601 Main would not be obliged to provide  
Centura with the opportunity to correct deficiencies upon termination pursuant to GC  
6.5.10. First, a termination of the Contract without notice is inconsistent with the  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 33  
trade contractor remaining on site to correct deficiencies because the Contract under  
which the deficiencies would be corrected has been validly terminated. More directly,  
upon termination under GC 6.5.10, the Owner has the express right to “engage  
another party to finish the Work”. Finishing the work would include correcting  
deficiencies existing at the time of the termination. This conclusion is consistent with  
GC 2.4.3 which, as noted above, expressly gives 601 Main the right to a set off in  
relation to deficiencies subject only to the Construction Manager holding the opinion  
that it is not expedient for the contractor to remedy the deficiencies. Icon was the  
Construction Manager and the evidence of its site superintendent, Mr. Brezovski,  
leaves no doubt that by the time the Contract was terminated Icon had formed the  
opinion that it was not expedient to permit Centura to correct any deficiencies.  
[107] The next step in deciding what Centura is entitled to be paid in respect of the  
Contract Value Claim requires me to determine whether the defendants have  
established that there were deficiencies in Centura’s work that had a quantifiable  
impact on its value.  
[108] The defendants’ position is that there were deficiencies in Centura’s work that  
Crystal corrected at a total cost of $157,594.40 ($140,156.75 to fix deficiencies and  
$17,437.65 to supply materials related to fixing the deficiencies), as reflected in  
quotations Crystal submitted to Icon for payment. Centura’s position is that the  
defendants have failed to establish that there were deficiencies in its work and,  
alternatively, have failed to link any deficiencies in its work to amounts paid to  
Crystal.  
[109] It is important to keep in mind that at the time the Contract was terminated  
much of Centura’s work was incomplete and the incomplete work has already been  
accounted for in valuing the Base Contract Work and the Extras. This stage of the  
analysis is concerned with defective work; that is, work that was performed by  
Centura but that did not conform to the requirements in the drawings, specifications,  
and related documents, or did not meet the accepted standard of workmanship.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[110] The record established, in general terms, that there were defects in Centura’s  
work at the time the Contract was terminated. This was clear from the testimony of  
Kim Adlington who was called by Centura, and two expert witnesses, Glenn  
Duxbury, a defence witness, and Brian Sim, Centura’s witness.  
[111] Mr. Adlington was employed by Centura as a supervisor during the time  
Centura worked on the Project. During Centura’s last days on site, in January 2016,  
Mr. Adlington performed what he referred to as “pre-board” and “post-board”  
inspections. He explained that the pre-board inspection was performed before the  
drywall was installed, while the post-board inspection was performed after the  
drywall was installed and before the taping began. During these inspections,  
Mr. Adlington checked Centura’s work in each unit and recorded everything that he  
thought needed to be done to complete the work. This included defects in Centura’s  
work as well as problems with the work of other trades that had to be corrected for  
Centura to finish up. His intention was to provide a list of the issues to Mr. Bowie  
who would assign hourly workers to make the required corrections and repairs to  
Centura’s work, and speak to the other trades or Mr. Brezovski about the issues with  
the work of other trades.  
[112] Mr. Adlington kept notes of the issues he identified in the pre-board and post-  
board inspections. He was presented with the notes during his testimony. He  
identified certain items as Centura’s deficiencies and other items as deficiencies of  
other trades. There were some items noted about which he had little if any  
recollection. Mr. Adlington testified that he also wrote notes in chalk on drywall to  
identify problems that had to be fixed.  
[113] Mr. Duxbury is a certified home inspector with extensive experience  
assessing the quality of construction. He identified several problems with Centura’s  
work and expressed the opinion that it fell below industry standards. The problems  
he identified included both defective work and incomplete work.  
[114] Mr. Sim is an architect with experience in architectural design and  
construction field reviews, including field reviews of drywall installations. He  
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responded to Mr. Duxbury’s report. In doing so, he emphasized the distinction  
between defective and incomplete work. He expressed the opinion that there were  
some defects in Centura’s work but they were within the range that “would have  
been foreseeable” and represented “a reasonable penultimate phase of the drywall  
installer satisfactorily completing the drywall work”.  
[115] Again, in light of the evidence summarized above, I have no doubt there were  
some defects in Centura’s work at the time the Contract was terminated. The more  
difficult task is determining whether the evidence links them to amounts paid to  
Crystal so that their impact on the value of Centura’s work can be quantified.  
[116] As mentioned, the defendants rely on a series of Crystal quotations, which  
are actually a selection of invoices Crystal submitted under the T&M Contract. There  
is a selection of quotations (the “Time Quotations”) that the defendants say reflect  
time Crystal spent finishing work Centura started but did not complete in the areas of  
the tower not covered by the Base Contract, and fixing deficiencies in Centura’s  
work. As explained, only the latter is relevant at this stage of the analysis. There is  
another selection of quotations (the “Materials Quotations”) that the defendants say  
reflect costs incurred by Crystal to supply materials related to the work Crystal  
performed under the T&M Contract. The Materials Quotations do not, or do not with  
clarity, distinguish between materials supplied to fix deficiencies and materials  
supplied to finish incomplete work.  
[117] The total amount paid to Crystal pursuant to the Time Quotations was  
$339,715.00. Of that amount, the defendants say $140,156.75 (40%) pertained to  
the fixing of deficiencies. The total amount paid to Crystal pursuant to the Materials  
Quotations was $43,594.14. The defendants submit that it would be appropriate to  
assume that the same proportion (40%) pertained to the fixing of deficiencies and  
thereby conclude that $17,437.65 was spent on the materials used to fix the  
deficiencies (40% of $43,594.14).  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[118] The Time Quotations and the Materials Quotations were created by a Crystal  
employee named Joseph Chin, with assistance from another Crystal employee  
named Teresa Speicher.  
[119] Mr. Chin was a project manager for Crystal. He testified that he was  
instructed to be on site full time to track Crystal’s work for billing purposes. His  
practice was to walk the floors of the tower, document the state of the work in a  
notebook (which he no longer has), and interview workers. He would then note, floor  
by floor, unit by unit, and room by room what was being done by Crystal’s workers  
each day. At the end of each day, Mr. Chin used his notes to create worksheets  
describing aspects of the work performed that day.  
[120] With help from Ms. Speicher, Mr. Chin translated the information in his  
worksheets into the Time Quotations. The worksheets note information such as the  
date, the level of the tower, the names of the workers, the hours they worked, and a  
very general description of the nature of the work. For example, one of the  
worksheets Mr. Chin was specifically referred to during his direct examination  
described the work as “L#5 Taping”. Another example described the work as “L#9,  
10, 11, 12, 4 Framing & Remedial”.  
[121] Mr. Chin testified that he documented the nature of the work in more detail in  
his notebook. He testified that sometime after creating the original version of some  
of the Time Quotations, Icon asked for more detail about the nature of the work. He  
testified that he and Ms. Speicher extracted additional details from his notebook and  
she added additional notes, in red font, onto the worksheets. For example, the  
worksheet noted above as having the description “L# 5 Taping” also has a notation  
in red font that reads: “Refilling sanding of walls due to oversanding by previous dw  
contractor which caused too may [sic] defects/scratches on drywall”. That more  
detailed description was replicated in what was apparently a second version of the  
associated Time Quotation.  
[122] Mr. Chin testified that his notes differentiated between repairing defects and  
completing unfinished work, but that he did not personally make the distinction.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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Rather, he consulted Mr. Polack or Mr. Brezovski daily or almost daily, and they, or  
one of them, made the distinction, which he then recorded in his notes.  
[123] Mr. Chin testified that he was also responsible for making notes about  
materials delivered to the site for Crystal’s work. He documented the nature of the  
materials and the level they were delivered to, and he verified the details by  
consulting the orders and packing slips. His notes and the orders and packing slips  
provided the foundation for the Materials Quotations.  
[124] Ms. Speicher was a project co-ordinator for Crystal at the time Crystal worked  
on the Project. From her testimony as a whole, it is apparent that her primary focus  
was to ensure that Mr. Chin correctly distinguished between work performed under  
the Base Contract and materials used in performing that work, on the one hand, and  
work performed under the T&M Contract and materials used in performing that work,  
on the other hand. She said she did not have to do much because Mr. Chin was  
good at his job.  
[125] From time to time, Ms. Speicher was copied on emails from Mr. Brezovski to  
Mr. Polack in which Mr. Brezovski instructed Mr. Polack to schedule workers to  
perform particular tasks. In those emails, Mr. Brezovski sometimes referred to fixing  
things Centura had done incorrectly and completing things that Centura missed.  
Ms. Speicher said she would file those emails and then discuss them with Mr. Chin,  
who was primarily responsible for categorizing the work.  
[126] Ms. Speicher testified that Mr. Chin was primarily responsible for creating the  
Time Quotations and the Materials Quotations from information in his notes and  
worksheets, but she sometimes assisted him. She said Mr. Chin decided how  
particular work should be categorized based on what he saw and how he was  
directed at the site. Her evidence about the red comments on the worksheets was  
similar to Mr. Chin’s evidence. She testified that about a month and a half after the  
work was done, Icon asked for more detail about the nature of the work and she  
added the red comments onto the worksheets in consultation with Mr. Chin and from  
information in his notes.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[127] In general terms, the red comments on the worksheets appear to be directed  
at distinguishing between work performed to remediate defects in Centura’s work  
and work performed to finish Centura’s work. Again, the distinctions were made by  
Mr. Brezovski or Mr. Polack on site, and merely recorded by Mr. Chin. Where the red  
comments indicate that the work was a combination of finishing and remediating, the  
time spent is not apportioned between the two categories. Similarly, the Time  
Quotations that pertain to both the remediation of work and the completion of work  
do not allocate the amount charged between the two types of work.  
[128] Ms. Speicher testified that in advance of the trial she reviewed the Time  
Quotations, and isolated those that pertained to remediating Centura’s work and/or  
finishing Centura’s work. It was clear that she did not independently assess the  
nature of the work; rather, she relied on the descriptions of the work on the face of  
the Time Quotations and backup documents. Similarly, in advance of the trial, she  
reviewed the Materials Quotations and isolated those that pertained to work done  
under the T&M Contract on the basis of coding on the face of them and notations on  
the corresponding packing slips.  
[129] Mr. Chin and Ms. Speicher were both careful witnesses. I had no difficulty  
accepting their evidence. I am satisfied that each of them was diligent in performing  
the tasks that ultimately resulted in the Time Quotations and the Materials  
Quotations. From their evidence, I find that the Time Quotations and the Materials  
Quotations accurately reflect Mr. Chin’s contemporaneous observations of the work  
done and materials delivered, and the contemporaneous instructions he received  
from Mr. Brezovski and Mr. Polack about whether the work in question involved  
fixing defects or finishing incomplete work. However, the fact that Mr. Brezovski or  
Mr. Polack characterized certain aspects of Centura’s work as defective and certain  
aspects of Crystal’s work as remedial in their out of court dealings with Mr. Chin is  
an insufficient foundation upon which to make findings about whether the underlying  
problem was actually a defect in Centura’s work that is properly back-charged to  
Centura.  
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[130] With one exception addressed below, neither Mr. Brezovski nor Mr. Polack  
provided evidence at trial that identified alleged defects with sufficient particularity  
and certainty for me to conclude that a defect was a deficiency that is appropriately  
back-charged to Centura, and to link the deficiency to one or more particular Time  
Quotations so as to assess the impact of the deficiency on the value of Centura’s  
work.  
[131] At the time of the trial, Mr. Polack was working for Optima Building Systems,  
a drywall contractor related to Centura. He previously worked for Crystal and was  
Crystal’s Progress Superintendent when Crystal was working on the Project.  
Mr. Polack agreed that there were deficiencies in Centura’s work, but his evidence in  
this respect was vague. Mr. Polack acknowledged that he was aware, at the time  
Crystal took over Centura’s work on the Project, that it was important for Crystal to  
track the work that was being done so it could be accurately assigned to either the  
Base Contract or the T&M Contract, and that he knew the amount paid to Crystal for  
repairing deficiencies in Centura’s work would be back-charged to Centura. He  
testified that he and Mr. Chin both provided information about the nature of the work  
being performed by Crystal, but his evidence did not go further and did not link any  
of the Time Quotations to any particular defects.  
[132] Mr. Brezovski testified that at the time Crystal was working on the Project, he  
reviewed Mr. Chin’s worksheets to ensure that Crystal’s work was properly tracked  
and documented. In his direct evidence, he explained that in addition to reviewing  
Mr. Chin’s worksheets, he sent emails directing Mr. Polack to fix particular things  
that Centura had done wrong and finish things Centura had left incomplete, and he  
copied Ms. Speicher with at least some of those emails to assist her in categorizing  
and billing for Crystal’s work. He testified that shortly before the trial, he reviewed all  
of the Time Quotations and removed any that could possibly pertain to work other  
than remediating or completing Centura’s work. However, he did not link any of the  
Time Quotations to any particular defects. In cross-examination, he admitted that  
some of the Time Quotations he isolated shortly before trial should not, in retrospect,  
have been included because they pertained to work that fell within the Base Contract  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 40  
or because they reflected a redesign and should have been considered an extra. He  
also acknowledged that in his review of the Time Quotations before trial he did not  
distinguish between work performed by Crystal to finish Centura’s work in the areas  
of the tower that fell within the T&M Contract and the work performed by Crystal to  
repair defective work. As mentioned, some of the Time Quotations concern both the  
fixing of deficiencies and the finishing of incomplete work, and do not allocate the  
amount charged between the two. Mr. Brezovski acknowledged that he did not track  
how much time Crystal’s workers were spending repairing defects as distinct from  
the time they spent finishing incomplete work.  
[133] Again, that Mr. Brezovski characterized particular work, in general terms, as  
remedial in his discussions with Mr. Chin on site and in his emails to Mr. Polack, is  
an insufficient foundation upon which to find that the work in question was in fact  
required to correct defects in Centura’s work. Further, the fact that some aspect of  
Centura’s work had to be repaired or changed does not necessarily mean that the  
work was defective in the sense that the associated cost is properly back-charged to  
Centura as a deficiency. For example, a wall could have been damaged by another  
trade or a design change could have resulted in a need for reframing. Without more  
particularized evidence about the nature of the problem that led to the work reflected  
in the Time Quotations, it is impossible to conclude that the defence has established  
on a balance of probabilities that the views Mr. Brezovski expressed to Mr. Chin and  
Mr. Polack five years before trial were correct.  
[134] The complaint about Centura’s framing for closet bypass doors is a good  
example of this problem. It appears that a significant amount of the remedial framing  
reflected in the Time Quotations may concern this issue. Mr. Brezovski  
characterized this work as remedial in his dealings with Mr. Chin. However, the  
evidence about why the closet door openings had to be reframed is ambiguous.  
[135] Mr. Brezovski testified that Centura made a mistake with the framing of the  
closet openings, but did not testify that he had personal knowledge of the cause of  
the problem. He explained that he or Dylan Wood (his assistant) would normally  
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Page 41  
supply the rough opening heights to the framing contractor. He said the widths are  
fairly standard but the heights depend on the hardware used.  
[136] Mr. Polack said that he received instructions from Icon to change the opening  
heights for the closet doors. He said he was not initially given a reason, but he also  
said he was told to change the framing to fit a particular “device” and he believes  
that was when he learned what heights to use. A February 12, 2016 email from  
Mr. Wood to Mr. Polack advises that the rough opening height was to be 84 inches  
on some levels and 84 and a quarter inches on other levels. Mr. Polack said he did  
not personally have a door schedule against which to check the heights although he  
was able to look at one on Mr. Brezovski’s laptop. He said he had to do his  
“homework” to find out what kind of hardware was involved. He said that Mr. Dylan’s  
instruction that the heights should be 84 inches or 84 and a quarter inches “didn’t  
show the channel”.  
[137] Mr. Bowie’s testimony on this topic was not reliable, but the documents  
establish that:  
in May 2015 Icon sent Centura a rough opening sheet provided by the door  
supplier that stipulated a “finished opening” height of 80 inches, and warned  
that “net door height [for bypass doors] will vary depending on which  
track/hardware manufacturer you are using”;  
in September 2015, Mr. Wood sent the same document to Mr. Bowie; and  
on October 9, 2015 Mr. Bowie sent an email to Mr. Wood titled “”RO Double  
Check” to which was attached the same document plus a table indicating a  
rough opening height for bypass closet doors of 80 and one half inches.  
[138] On this record, even if I could accurately identify which amounts charged on  
which Time Quotations pertain to the reframing of closet door openings, I am unable  
to find that Centura framed the door openings in a manner that was inconsistent with  
the specifications it had been given. In other words, it has not been established that  
the closet doors had to be reframed because Centura made a mistake. It is equally  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 42  
possible that there was a change to the “device” that resulted in a need to change  
the heights.  
[139] In his August 23, 2018 report, Mr. King also addressed deficiencies.  
However, his evidence on this point did not fill the evidentiary gap. He reviewed  
most, but not all, of the Time Quotations. He categorized the ones he reviewed as  
relating to incomplete work, deficient work, or both, but he provided little explanation  
of the basis for his categorization. He did not explain whether or on what basis he  
concluded that any particular work deviated from the requirements in the drawings  
and specifications, or failed to meet industry or prevailing standards. He relied  
heavily on the descriptions of the work in the Time Quotations as “remedial”. For the  
Time Quotations that pertained to both deficient and incomplete work, he “estimated’  
the portion pertaining to deficiencies, but the basis for his estimates was not  
apparent.  
[140] As observed in Turano’s Home Improvement Inc. at para. 54, expert evidence  
may be necessary to make findings about whether particular deficiencies have been  
proved, such as with respect to highly technical matters concerning applicable  
standards of construction, but there are some deficiencies so obvious that  
conclusions can be made without expert evidence. I am satisfied by the evidence of  
Mr. Brezovski and Mr. Polack that, speaking generally, there were some deficiencies  
in Centura’s work. I am satisfied about the nature of some of those deficiencies by  
the evidence of Mr. Adlington, Mr. Duxbury, and Mr. Sim. The problem is that, with  
the one exception alluded to above, no link between those and the Time Quotations  
or Materials Quotations has been established. In the circumstances, there is an  
inadequate evidentiary foundation upon which to assess whether and to what extent  
particular deficiencies caused a reduction in the value of Centura’s work and to  
quantify that reduction.  
[141] The exception arises out of Mr. Brezovski’s evidence and concerns the “tape  
and fill” aspect of Centura’s work on levels three and five of the tower. It was  
apparent from Mr. Brezovski’s testimony that he had personal knowledge of and a  
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Page 43  
specific recollection about this issue. He said that after Centura was terminated, the  
painter rejected levels three and five for poor workmanship. This was memorable for  
him as he had never before had a painter reject an entire floor. He testified that  
Crystal had to re-mud the walls on those levels and this was a lot of work. Even  
Mr. Bowie admitted that Centura had been using a taping crew that was the worst he  
had seen, and that crew was working on level three on Centura’s last day on the  
site. On this evidence I find that the “tape and fill” aspect of Centura’s work on levels  
three and five was not performed in a good and workmanlike manner and had to be  
remediated by Crystal.  
[142] I have reviewed the Time Quotations and, from the descriptions of the work  
noted on them, I accept that those numbered 104, 108, 113, and 126 pertain entirely  
to correcting “tape and fill” on levels three and five. The total charged in those is  
$5,940 before GST. Time Quotations 100 and 132 appear to pertain in part to this  
deficiency, but there is no acceptable evidentiary basis for allocating a portion of the  
amount charged on those to this deficiency. Similarly, the record does not establish  
which, if any, of the Materials Quotations pertain to materials supplied by Crystal to  
remediate the “tape and fill” on levels three and five. Accordingly, I find that the  
defendants have established that deficiencies in Centura’s tape and fill work  
decreased its value by $5,940 plus GST ($6,237).  
[143] To recap, Centura has established that, before accounting for deficiencies,  
the work it completed up to the termination of the Contract had a value of  
$1,037,692.95 including GST ($794,000 plus 5% GST for Base Contract Work and  
$194,279 plus 5% GST for Extras). From that amount there must be deducted  
$6,237 to reflect deficiencies in the tape and fill on levels three and five and  
$455,879.33 which Centura has already been paid. This leaves $575,576.62 owing  
to Centura for the work it completed up to the termination of the Contract.  
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What, if anything, is Centura entitled to be paid in respect of the  
Interference Claim?  
[144] The Interference Claim concerns damage Centura says it suffered as a result  
of 601 Main’s breach of the Contract in failing to provide it with proper access to and  
control of the site. Again, Centura says Icon’s mismanagement caused a number of  
events and conditions that interfered with its ability to complete its work in a timely  
way and caused it to incur increased costs.  
[145] As I have said, Centura’s complaints included but were not limited to the  
following: other trades were delayed which impacted Centura’s ability to ramp up its  
workforce, floors were not turned over to Centura in a ready state which prevented  
its production crews from completing their work efficiently and led to them leaving  
the site, the skip used to move workers and material up the tower was inadequate,  
the correct shower design was provided late resulting in the need for significant  
reframing, the reflected ceiling drawings were incomplete which led to further  
reframing, Icon prioritized the work in the commercial space leased to the Bank of  
Montreal which disrupted Centura’s schedule and work sequencing and interfered  
with its ability to retain production crews on site and achieve efficiencies in its work,  
and spray foam installation was delayed which prevented Centura’s work from  
progressing.  
[146] In support of this aspect of its claim, Centura relied on the evidence of  
Mr. Bowie and additional evidence of Mr. Stregger. In a report labeled “Review of  
Impact on Schedule and Costs …” (“Impact Report”), Mr. Stregger assumed the  
accuracy of the complaints underlying the Interference Claim as noted in Mr. Bowie’s  
memorandum (which I mentioned in the credibility section of these reasons) and  
then expressed the following conclusions:  
the Project was not proceeding in an organized manner;  
he did not have sufficient information to “accurately calculate the delay and  
impact to the schedule”, but based on his experience the cumulative effect of  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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the problems “likely added 20% to 30% to time for Centura to complete their  
work”;  
“a delayed start can affect the scheduled time frame by a further 15% to  
20%”; and  
the “inefficiency and delays and interference added between 28% to 38% to  
the cost of the work”.  
[147] Although it is far from clear, the last of those conclusions appears to have  
been based on what Mr. Stregger was told about Centura’s actual costs to complete  
the work which, in his Review of Value Report, he calculated as representing an  
overrun of about $414,000 before GST. He said it was appropriate to discount the  
overrun by between 15% and 25% to “account for normally expected inefficiencies  
[by Centura] in organizing the work”. It is on this basis that Centura quantified this  
aspect of its claim at about $310,000.  
[148] The defendants’ position is that Centura failed to establish that the  
defendants caused any delay or are responsible for any event that resulted in  
Centura incurring increased costs. They say Mr. Stregger’s evidence on this point  
can be given no weight. In any event, the defendants submitted that, among other  
contractual bars, GC 6.5.4 of the Contract precludes recovery unless Centura  
provided notice of a claim for cost impacts within 10 working days of the  
commencement of the delay or impact in question, and Centura failed to provide any  
such notice. They also say that Centura’s recourse is expressly limited by the  
second sentence of GC 6.5.10 to “payment only in respect of the Work completed up  
to the date of termination” (emphasis added) and the Interference Claim does not fall  
within that limiting language.  
[149] Whether GC 6.5.10 has the effect of precluding the advancement of  
Centura’s Interference Claim is an interesting question but not one that has to be  
answered. This is because there are three other problems with the Interference  
Claim, the latter two of which are fatal.  
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[150] First, proof of the complaints of interference and delay underlying Centura’s  
Interference Claim depends heavily on the testimony or Mr. Bowie (and the accuracy  
of his memorandum). For reasons already expressed, the credibility of his testimony  
was seriously undermined and the memorandum is unreliable.  
[151] Second, proof of the damages said to have flowed from the complaints of  
interference and delay depends heavily on Mr. Stregger’s Impact Report and it does  
not provide a reliable basis upon which I could assess the cost impacts of any of the  
complaints that may have been established.  
[152] The foundation for Mr. Stregger’s opinions that the cumulative effect of the  
problems “likely added 20% to 30% to time for Centura to complete their work”; “a  
delayed start can affect the scheduled time frame by a further 15% to 20%”;  
“inefficiency and delays and interference added between 28% to 38% to the cost of  
the work”, and between 15% and 25% should be allocated to “account for normally  
expected inefficiencies [by Centura]” is stated in the most general terms as his  
“experience”. This significantly limited my ability to assess the strength of the  
foundation and therefore the soundness of the opinions. For this reason, this aspect  
of Mr. Stregger’s evidence can be given little, if any, weight.  
[153] In addition, even assuming the soundness of Mr. Stregger’s opinion that the  
cumulative effect of the problems added between 28% and 38% to the cost of  
Centura’s work, his evidence does not provide a basis upon which I could quantify  
the cost impact of one or some of the complaints. It would be necessary to do so  
given that Centura acknowledged that not all of the complaints were proved at trial.  
Mr. Stregger did not attempt to quantify the cost impact of any of the complaints on  
an individual basis. Rather, he merely calculated the cost overrun (purely a  
mathematical exercise once he had assessed the value of the Base Contract Work  
and Extras) and discounted it by the 15% to 25% that he said should be allocated to  
“account for normally expected inefficiencies [by Centura]”. Assuming,  
notwithstanding the problems with Mr. Bowie’s evidence, I could find that some of  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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the complaints were proved, determining any associated cost impact would be an  
entirely arbitrary exercise.  
[154] Third, and in any event, I agree with the defendants that Centura failed to  
provide the notice required by GC 6.5.4 and, as a result of that failure, Centura is  
precluded from recovering compensation for cost impacts.  
[155] GC 6.5.4 of the Contract states:  
The Trade Contractor waives any claim for extension of Contract Time or  
compensation for costs incurred as a result of an Excusable or Owner  
Caused Event unless the Trade Contractor provides a notice in writing of the  
claim to the Construction Manager within 10 Working Days after the  
commencement of the delay or impact. A notice in writing shall describe the  
event, the date the delay or impact commenced, the anticipated duration of  
the delay or impact, the effect on the Contract Time and all steps taken or  
available to mitigate the delay or impact.  
[156] In its material respects GC 6.5.4 requires:  
written notice of a claim for costs incurred as a result of the event in  
question;  
that is delivered within 10 working days of the commencement of the  
event;  
that describes the event;  
that identifies the date the event commenced;  
that identifies the anticipated impact; and  
that identifies the steps taken or available to mitigate the impact.  
[157] It is well established that contractual provisions like GC 6.5.4 are  
preconditions to a contractor’s right of recovery and the failure to comply with them  
bars the contractor from recovering: see for example Corpex (1977) Inc. v. Canada,  
[1982] 2 S.C.R. 643; Doyle Construction Co. v. Carling O’Keefe Breweries of  
Canada Ltd. (1987), 23 C.L.R. 143 (B.C.S.C.); aff’d (1988), 27 B.C.L.R. (2d) 89.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[158] The purpose of a notice provision like GC 6.5.4 is not in dispute. It is to  
enable the owner to consider the claim and its financial consequences, and to  
protect its own position by doing such things as gathering information and taking  
mitigating steps: Doyle Construction Co.  
[159] Whether a notice provision like GC 6.5.4 has been satisfied is a question of  
substance and not form, and even where the technical requirements have not been  
met, a “notice defence” will be rejected where the purpose of notice has been  
achieved through less formal means: TNL Paving Ltd. v. British Columbia (Ministry  
of Transportation and Highways), [1999] B.C.J No. 1708 (S.C.) and Golden Hill  
Ventures Ltd. v. Kemess Mines Inc., 2002 BCSC 1460.  
[160] The cases I was referred to on the issue of notice turn on their particular  
facts. The task is to determine whether, on the facts of this case, irrespective of the  
technical form of any notice, the defendants were alerted to Centura’s intention to  
pursue a claim for costs incurred as a result of a myriad of events, in time and with  
enough information for them to consider the financial consequences and attempt to  
protect their position.  
[161] Centura says that it notified 601 Main or Icon “on numerous occasions, of  
delays, interference, increased costs, and an intention to recover them”. In this  
respect Centura relies on several emails and one letter with the following dates (all  
in 2015): July 9, August 21 (two emails), August 24, September 10, September 15,  
September 29, October 5, October 19, October 20, October 21 (two emails),  
October 22, October 23 (two emails), October 28, October 30, December 15,  
December 18, December 29, January 14, and January 15 (two emails). Centura  
submits that these communications fulfill, in substance, any notice requirement.  
[162] In my view, none of the communications noted above on its own, or in  
combination with others, meets the substance of the requirements of GC 6.5.4. It is  
not necessary to address each of them. I will give some examples:  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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The July 9 email identifies a number of issues that Centura asserts have  
delayed the progress of its work, but it does not suggest or imply that Centura  
intends to advance a claim for costs incurred as a result. Most, if not all, of the  
issues occurred more than 10 days before. No anticipated cost impacts are  
identified.  
The September 10 email contains the statement that “any delay also means  
additional costs to us” but read in context it was not providing notice of  
Centura’s intention to advance a claim for costs but rather was an observation  
intended to reassure Icon that Centura was motivated to ensure it was not the  
cause of delay.  
The October 30 letter does not suggest or imply that Centura intends to  
advance a claim for costs. Rather, it is a defence to a notice of delay issued  
to it.  
[163] None of the communications identified by Centura served to crystalize a  
position with respect to a particular delay or impact in a manner that would have put  
601 Main or Icon on notice of the need to consider the claim and its potential  
financial consequences, and protect its own position. Rather, to the extent the  
communications contain complaints about delays or impact, they amount to no more  
than the kind of “grumblings” that Locke, J.A. in concurring reasons in Doyle  
Construction Co. found were insufficient to meet the notice requirements for  
advancing a claim for impact costs.  
[164] For these reasons, the Interference Claim is dismissed.  
Have the defendants established that Centura breached the Contract  
and, if so, what damages flow from the established breach(es)?  
[165] The defendants’ claim damages for breach of contract in the amount of  
$673,539.60 plus GST which is comprised of:  
$157,341.60 representing the difference between the amount they ultimately  
spent on the steel stud, drywall, and insulation scope of work on the Project  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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(most of which was paid to Crystal, as Centura’s replacement), and the  
amount they say they would have had to pay Centura to complete the work;  
and  
$516,198 representing the additional costs they incurred as a result of a four-  
month delay in completing the Project which they say was caused by  
Centura.  
[166] In their Amended Counterclaim, the defendants allege that Centura’s delays  
and deficiencies constituted a breach of the Contract. It is said that this entitled the  
defendants to terminate the Contract pursuant to “section 6.5.10, 7.1.2 and 7.1.7” of  
the Contract and, alternatively, pursuant to “the common law doctrine of  
Fundamental Breach”. However, the express contractual terms said to have been  
breached are not identified in the pleadings.  
Did Centura breach the Contract?  
[167] As already discussed, in addition to the obligation to perform the work in  
accordance with the specifications and drawings contemplated by the “Contract  
Documents”, it is an implied term of a construction contract that the work is to be  
done in a good and workmanlike manner and, to the extent discussed above in the  
section dealing with the alleged deficiencies, Centura breached that term.  
[168] I turn now to delay. The defendants’ position is that the Recovery Schedule  
was the governing schedule from November 4, 2015 to the date of termination, and  
it wiped the slate clean so to speak. The defence submitted that the whole point of  
the Recovery Schedule was to get Centura back on track and, accordingly, delays  
prior to the Recovery Schedule became irrelevant. This was also the position  
adopted by Centura’s witnesses, Mr. Bowie and Mr. Pengelly, in their testimony.  
They said the Recovery Schedule was intended to take into account all delays that  
had occurred to the point the Recovery Schedule was agreed to, regardless of who  
caused them.  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[169] As discussed, there is no dispute that the progress of Centura’s work was  
delayed by at least 30 days as at January 23, 2016. It appears to be the defence  
position that Centura breached the Contract by failing to meet the milestone dates in  
the Recovery Schedule, but the focus of the submissions was on whether Centura  
was at fault for the acknowledged delay as opposed to whether a breach of the  
Contract giving rise to liability for damages had actually been established.  
[170] Although Centura admitted that the progress of its work was delayed, it  
argued that the Recovery Schedule was abandoned soon after it was established for  
reasons that were not its fault and, as a result, time had been put “at large”. Centura  
acknowledged that it continued to have an obligation to complete its work within a  
reasonable time, but submitted that it was no longer obliged to meet the specific  
milestone dates in the Recovery Schedule. Centura cited the “prevention principle”  
in support of its submission that time had been put at large: see Perini Pacific Ltd. v.  
Greater Vancouver Sewerage and Drainage District (1966), 57 D.L.R. (2d) 307  
[Perini] at paras. 33-38.  
[171] I have doubt about whether the principle applied in Perini has application here  
because it is said to apply where a contractor’s failure to complete work by a  
specified date is brought about by the act of the other party to the Contract. For  
reasons discussed below, I am not persuaded that 601 Main was the cause of the  
delay that occurred after the Recovery Schedule was established. In other words, I  
am not persuaded that any act of the defendants prevented Centura from meeting  
the dates stipulated in the Recovery Schedule. However, it is my view that Centura’s  
failure to meet those dates did not amount to a breach of the Contract because, in  
my view, the Recovery Schedule ceased to apply once it became apparent that the  
schedule for the mechanical and electrical rough-in could not be met.  
[172] GC 3.5.4 provides that “[t]ime is to be considered of the essence and the  
Trade Contractor agrees to perform the Work in accordance with the Construction  
Schedule and the master Project Schedule”. The definitions of Construction  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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Schedule and Project Schedule are less clear than one would wish. In the Contract’s  
supplementary conditions, “Project Schedule” is defined as:  
the project schedule prepared and submitted by the Construction Manager  
pursuant to GC 3.5.1. Master Schedule, Master Project Schedule,  
Construction Schedule or Schedule shall all refer to Project Schedule.  
[173] The Recovery Schedule is not a schedule submitted by the Construction  
Manager pursuant to GC 3.5.1. Rather, it is a schedule provided by Centura in  
response to a demand under GC 3.5.8. Nevertheless, even though GC 3.5.4 does  
not expressly refer to a recovery schedule, in my view it must be implied, given that  
time is expressly made of the essence, that having provided a schedule in response  
to a demand under GC 3.5.8, the trade contractor is contractually obliged to meet it  
for so long as it is the governing schedule.  
[174] However, the Recovery Schedule was expressly conditional on the feasibility  
of the schedule for the mechanical and electrical rough-in. This was fundamental, as  
much of Centura’s work (insulation, drywall or boarding, and tape and fill) follows  
completion of the mechanical and electrical rough-in. Mr. Brezovski, the Icon  
representative with the most knowledge of what was happening on site, testified that  
he was not consulted by the defendants about the dates in the Recovery Schedule.  
He said that he saw it after it had been agreed to and quickly formed the view that it  
was unrealistic. He said he thought it was unrealistic for all the trades and, in  
particular, that the time allocated for the mechanical and electrical rough-in was  
inadequate. From his evidence and other evidence concerning the cause of the  
delay that occurred after the Recovery Schedule was established (which is  
discussed below), I find that very soon after the Recovery Schedule was established  
it became apparent to both parties that the mechanical and electrical rough-in  
schedule was not feasible.  
[175] Pursuant to GC 3.5.3, Icon was obliged to monitor the progress of the work  
and update the “Project schedule” on a monthly basis. It did not do so. Accordingly,  
when it became apparent that the condition on which the Recovery Schedule was  
based could not be met, there ceased to be any current milestone dates for Centura.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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As discussed below, the evidence does not support the conclusion that in the period  
after the Recovery Schedule was established, Centura breached any remaining  
obligation to complete its work within a reasonable time.  
[176] For these reasons, the delay in the progress of Centura’s work in the period  
after the Recovery Schedule was established did not constitute a breach of the  
Contract.  
What if any damages flow from the breach of contract?  
[177]  
I have found that, to the extent discussed above in the section dealing with  
the alleged deficiencies, Centura breached the implied term obliging it to perform its  
work in a good and workmanlike manner. I have also found that the delay in the  
progress of Centura’s work in the period after the Recovery Schedule was  
established did not constitute a breach of the Contract. However, in case the latter  
finding is wrong and because of the potential significance of the fundamental breach  
argument, I have analysed the defendants’ damages claim as if both breaches of  
contract had been established. The question then is whether the defendants have  
proved that the damages they claim actually flowed from one or the other of these  
breaches of contract. In my view, they have not.  
[178] The increased costs to complete the steel stud, drywall, and insulation scope  
of work on the Project (the first category of damages claimed) were incurred as a  
result of the decision by 601 Main to terminate the Contract and engage Crystal as a  
replacement for Centura. The Contract was terminated under GC 6.5.10, which I  
have found is a no-fault provision. Accordingly, the basis actually relied on by the  
defendants as justifying the termination of the Contract precludes them from  
recovering the first category of damages because those damages flowed not from  
any breach of the Contract by Centura, but from 601 Main’s choice to exercise its  
termination right under GC 6.5.10.  
[179] The defendants argued that Centura’s breaches of contract amounted to  
“fundamental breach” which provided an alternative justification for termination. If  
that is so then the incremental increased costs of completing Centura’s work might,  
 
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
Page 54  
subject to mitigation arguments, be recoverable as damages flowing from the  
breach.  
[180] In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 at  
paras. 144 to 149, Cromwell J. discussed the general principles of contract law  
relating to repudiation, which has sometimes been referred to, as by the parties in  
this case, as “fundamental breach”:  
144 The term repudiation refers to the situation in which a breach of contract  
by one party gives rise to the right of the other party to terminate the contract  
and pursue the available remedies for the breach: J. D. McCamus, The Law  
of Contracts (2nd ed. 2012), at pp. 676-78. This occurs when one party  
actually breaches the contract in some very important respect and is said to  
thereby repudiate the contract. If the other party "accepts" the repudiation,  
the contract is over. If the other party does not accept the repudiation, the  
contract continues (subject to various other doctrines). In either case, the  
non-breaching party can pursue the available remedies which may vary  
depending on whether that party has accepted the repudiation or affirmed the  
contract.  
145 There is a wealth of learning about the types of breach that constitute  
repudiation. Without getting into the details, we may say in brief that a breach  
is a repudiation of the contract if it is a breach of a contractual condition or of  
some other sufficiently important term of the contract so that there is a  
substantial failure of performance: S. M. Waddams, The Law of Contracts  
(6th ed. 2010), at para590; McCamus, at pp. 676-77.  
146 I pause here to deal with three problems of terminology that can cause  
confusion.  
147 The first relates to the word "repudiation"; it is used in at least two  
different senses. Sometimes it refers to the conduct of the breaching party in  
committing a breach that is sufficiently serious to give the non-breaching  
party the right to treat the contract as over. At other times the term is used to  
refer to the choice of the non-breaching party, faced with this sort of serious  
breach, to treat the contract as over. I will use the word "repudiation" to refer  
to the acts of the party alleged to be in breach. I will refer to the choice of the  
non-breaching party to treat the contract as over as "acceptance" of the  
repudiation.  
148 The second terminological clarification deals with the term "fundamental  
breach". The types of breach that are sufficiently serious to constitute  
repudiation are often referred to as "fundamental" breaches. However, use of  
the term "fundamental breach" can cause confusion because it is also used in  
the distinct context of deciding whether a contractual provision excluding or  
limiting liability is effective in the face of a radical departure from the  
contractual obligations: see, e.g., Tercon Contractors Ltd. v. British Columbia  
(Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras.  
104-23. To avoid that confusion, I prefer to refer to breaches of this nature as  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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breaches of "sufficiently important terms" or "repudiatory" breaches: see, e.g.,  
McCamus, at p. 651.  
149 The final point of terminology is concerned with "anticipatory" breach. An  
anticipatory breach "occurs when one party manifests, through words or  
conduct, an intention not to perform or not to be bound by provisions of the  
agreement that require [page568] performance in the future": McCamus, at p.  
689; see also A. Swan, with the assistance of J. Adamski, Canadian Contract  
Law (2nd ed. 2009), at s.7.89. When the anticipated future non-observance  
relates to important terms of the contract or shows an intention not to be  
bound in the future, the anticipatory breach gives rise to anticipatory  
repudiation. The focus in such cases is on what the party's words and/or  
conduct say about future performance of the contract. For example, there will  
be an anticipatory repudiation if the words and conduct evince an intention to  
breach a term of the contract which, if actually breached, would constitute  
repudiation of the contract.  
[181] In applying those principles, Cromwell J. explained, at para. 164, that a  
repudiatory breach that entitles the non-breaching party to treat the contract at an  
end, may be established on the basis of an actual breach that meets the importance  
threshold (substantial failure of performance) and also by conduct that, in all the  
circumstances, shows that the breaching party does not intend to be bound by  
important terms of the contract in the future.  
[182] In my view, even if both breaches of contract had been established, they  
would not have amounted to repudiatory breach under either of those bases.  
[183] As discussed, the damage the defendants established in relation to the  
claimed deficiencies is almost insignificant. While Centura’s failure to meet the good  
and workmanlike standard amounted to a breach of contract, it clearly did not  
amount to a substantial failure of performance.  
[184] Similarly, even if Centura’s failure to meet the Recovery Schedule was a  
breach of the Contract, it could not be characterized as a substantial failure of  
performance because Centura contributed in only a minor way, if at all, to the delays  
that occurred after the Recovery Schedule was established.  
[185] The primary cause of the delay in Centura’s work after the Recovery  
Schedule was established was delay in the completion of the mechanical and  
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Page 56  
electrical rough-in which set off a chain of delay. It was the primary cause of a delay  
in completing the firestopping and passing the associated inspections, which in turn  
delayed the commencement of the insulation phase of Centura’s work.  
[186] The evidence was overwhelming that the mechanical and electrical trades  
were not able to meet the rough-in schedule upon which the Recovery Schedule  
was based. As mentioned, Mr. Brezovski testified that he thought the Recovery  
Schedule was unrealistic for all the trades, including the mechanical and electrical.  
Although he maintained that delay in Centura’s framing back in June and July  
pushed everything back (including the mechanical and electrical rough-ins), there is  
no dispute that the slate was wiped clean when the Recovery Schedule was  
established in early November. In addition, on November 12, 2015, Icon requested  
design changes to the framing (ultimately charged as an extra by Centura and  
approved as such by Icon) that delayed the mechanical rough-in.  
[187]  
There is some evidence that deficiencies in some of Centura’s framing  
contributed to the firestopping initially failing some inspections, but it was clear from  
Mr. Brezovski’s evidence that delays associated with firestopping were minor; the  
firestopping could not be finished until the mechanical and electrical rough-in was  
complete, and Centura could not start the insulation phase of its work (spray foam  
and batt insulation) until the firestopping had passed inspection.  
[188] There was a lot of evidence related to Icon’s request that Centura change the  
spray foam product Centura intended to use because of a concern that it was not  
compatible with some piping that was being used in the heating system. Rather than  
simply making the change, Centura spent time trying to obtain evidence that would  
demonstrate that the product it originally intended to use was in fact compatible with  
the piping. The defence characterized this as resulting in the biggest delay following  
the establishment of the Recovery Schedule. However, as explained, Centura could  
not start applying the spray foam until the firestopping had passed inspection. That  
did not happen until mid-December (largely because of the delay in completing the  
mechanical rough-in) and the spray foam issue was resolved by December 8, 2015.  
Centura Building Systems (2013) Ltd. v. 601 Main Partnership  
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[189] In summary, although Centura spent time trying to secure approval of its  
preferred spray foam product, its efforts in that regard did not delay the  
commencement of its spray foam application work. The delay in passing the  
firestopping inspections contributed in only a minor way to the overall delay that  
occurred after the Recovery Schedule was established. The primary cause of that  
overall delay was delay in the mechanical and electrical rough-in.  
[190] I return to the second basis upon which a repudiatory breach may be  
established; that is, conduct that, in all the circumstances, shows that the breaching  
party does not intend to be bound by important terms of the contract in the future.  
[191] Citing Fox (c.o.b. Griffin Construction Services) v. Rindje, [1995] B.C.J. No.  
773, 58 B.C.A.C. 108 (B.C.C.A.), the defendants submit that an owner’s loss of  
confidence in a contractor justifies termination for repudiatory breach. Of course, that  
may be so where on the facts of the case in question it has been shown that the  
contractor did not intend to be bound by important terms of the contract in the future.  
That is not the case here.  
[192] Although there were deficiencies in Centura’s work at the time of the  
termination, I accept Mr. Adlington’s evidence to the effect that his pre-board and  
post-board inspections were a form of quality control. In other words, Centura  
intended to correct the deficiencies. In addition, irrespective of the delays Centura  
may have caused before the Recovery Schedule was established, once the  
Recovery Schedule was in place Centura intended to complete its work promptly. I  
have already found that Centura played a minor role in the delay that occurred after  
the Recovery Schedule was established. According to Mr. Brezovski, once the  
Recovery Schedule was in place, Centura’s complaints virtually stopped, Mr. Bowie  
displayed a sense of urgency, and Centura’s manpower increased. In all the  
circumstances, it cannot be said that at the time the Contract was terminated,  
Centura’s conduct suggested that it did not intend to be bound by important terms of  
the Contract in the future.  
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[193] For these reasons, GC 6.5.10 provided the only justification for the  
termination of the Contract. The increased costs to complete the steel stud, drywall,  
and insulation scope of work on the Project (the first category of damages claimed  
by the defendants) were incurred as a result of 601 Main’s choice to exercise its  
termination right under GC 6.5.10 and did not flow from any breach of the Contract  
by Centura.  
[194] The final question is whether, assuming Centura beached the Contract by  
failing to meet the Recovery Schedule which I have found it did not, that breach  
caused the defendants to incur additional costs associated with an overall delay in  
completing the Project (the second category of damages they claim). In my view,  
again assuming Centura beached the Contract by failing to meet the Recovery  
Schedule, it has not been established that this caused the overall delay. For the  
reasons I have already explained, the establishment of the Recovery Schedule  
rendered the prior delays irrelevant and Centura played only a minor role in the  
delay that occurred after the establishment of the Recovery Schedule. The  
evidentiary record fails to establish a casual link between that minor delay and what  
the defence characterizes as a four-month delay in obtaining the Final Occupancy  
Permit.  
Did Centura file a claim of builders lien in an amount that it knew or  
ought to have known was exaggerated and, if so, are the defendants  
entitled to damages for abuse of process?  
[195] On March 4, 2016, Centura filed a claim of builders lien, pursuant to the  
Builders Lien Act, S.B.C. 1997, c.45 (the “BLA”), for $1,136,593, which purportedly  
represented Centura’s then view of the magnitude of the Contract Value Claim and  
the Interference Claim. On or about April 14, 2016, by consent, the lien was  
cancelled and security in the amount of $1,136,593 was paid into court in place of  
the lien.  
[196] Subsequently, the defendants applied to cancel the lien pursuant to s. 25(2)  
of the BLA. They argued, among other things, that it was grossly overstated because  
 
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the Interference Claim could not be sustained in light of Centura’s failure to give  
notice as required by the Contract.  
[197] On August 21, 2016, Abrioux J., then of this Court, dismissed the application  
to cancel the lien but, pursuant to s. 24 at the BLA, he reduced the quantum of  
security posted to $550,000: Centura Building Systems (2013) Ltd. v. 601 Main  
Partnership, 2017 BCSC 1727.  
[198] The Court of Appeal allowed Centura’s appeal: Centura Building Systems  
(2013) Ltd. v. 601 Main Partnership, 2018 BCCA 172. Savage J.A. agreed that the  
only inference consistent with the record and the reasons is that Abrioux J.  
discounted the Interference Claim in its entirety. The Court held that he erred by  
“ventur[ing] into a difficult analysis of the claim on the merits, including contractual  
interpretation without considering the context, rather than applying the cautious  
approach directed by the authorities” (para.46). The “cautious approach” is one that  
recognizes that a determination on the merits cannot be made, in a summary way,  
on an application to cancel a claim of lien or reduce security (para.34).  
[199] On the application before Abrioux J., Centura relied on an internal costs  
analysis and the evidence of Mr. Stregger. According to the internal analysis, the  
actual costs incurred by Centura to complete its work up to the date of termination,  
plus overhead and profit, amounted to about $1.6 million. From the reasons of the  
Court of Appeal (para. 9), it appears that Mr. Stregger’s evidence was that the  
amount owing under the Contract, including in respect of approved or pending  
change orders, was $706,037, and that Centura had incurred a cost overrun of  
$412,409.44 due to interference and delays.  
[200] In the Amended Counterclaim, the defendants assert that:  
1. the lien was in an amount Centura “knew to be false and grossly  
overstated”, contrary to s. 45 of the BLA;  
2. Centura’s filing of the lien was “a calculated attempt to secure litigation  
advantages and coerce concessions from 601 Main that it was not entitled  
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to” and this amounts to an abuse of the Court’s process that is deserving  
of rebuke in the form of an award of punitive or aggravated damages; and  
3. in addition, or in the alternative, pursuant to s. 19 of the BLA, the  
defendants are entitled to an award of damages for the improper filing of  
the lien.  
[201] Section 45 of the BLA creates an offence:  
45 (1) A person who knowingly files or causes an agent file a claim of lien  
containing a false statement commits an offence.  
(2) A person who commits an offence under subsection (1) is liable to a fine  
not exceeding the greater of $2,000 and the amount by which the stated  
claim exceeds the actual claim.  
[202] Section 19 of the BLA creates a civil remedy for filing a lien against land “to  
which the lien claim does not attach”:  
19. A person who files a claim of lien against an estate or interest in land to  
which the lien claimed does not attach is liable for costs and damages  
incurred by an owner of any estate or interest in the land as a result of the  
wrongful filing of the claim of lien.  
[203] In final argument, defence counsel clarified that the defendants’ claim in  
relation to the alleged “over-liening” is grounded in the tort of abuse of process,  
apparently conceding that s. 45 does not create a civil remedy and s. 19 is limited in  
its application to wholly invalid liens and does not apply to allegedly inflated ones.  
[204] The elements of the tort of abuse of process are (a) a wilful misuse or  
perversion of the court’s process for a purpose extraneous or ulterior to that which  
the process was designed to serve, and (b) some damage flowing therefrom:  
Border Enterprises Ltd. v. Beazer East, Inc., 2002 BCCA 449, paras. 51-53.  
[205] The essence of the defendants’ abuse of process claim is that Centura’s lien  
was so obviously grossly inflated by the amount Centura sought in the Interference  
Claim that the only reasonable inference is that Centura deliberately inflated it “to  
cause the defendants economic hardship in an effort to improperly pressure on [sic]  
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the defendants to gain a litigation advantage”. As I understood it, this position was  
based on the submission that:  
1. Centura knew that it did not give the notice required by GC 6.5.4 of the  
Contract to advance the Interference Claim and, given the reasons of Abrioux  
J. on the defence application to cancel the lien, Centura ought to have known  
that, as a result of the failure to give that notice, the Interference Claim was  
bound to fail; and  
2. the Interference Claim depended on Mr. Stregger’s evidence (in particular, his  
calculation of the cost overrun and conclusion that the majority of it could be  
attributed to delay caused by the defendants) and Centura knew or ought to  
have known that his analysis was wrong.  
[206] It almost goes without saying that the fact that the Interference Claim did not  
succeed is not enough to ground a claim for damages for abuse of process.  
[207] I found that Centura’s failure to give the notice required by GC 6.5.4 was fatal  
to the Interference Claim. However, as Savage J.A. observed at para. 42 of his  
reasons for allowing Centura’s appeal of the order reducing the security, “the  
question of whether [this kind of] notice has been given and the purpose of the  
notice has been achieved – is a contextually driven substantive inquiry”. As he noted  
at para. 40, there was evidence that Centura made a number of complaints about  
delay. In the circumstances, the question of whether the purpose of the notice  
provision had been met could only be determined by a consideration of all the  
evidence admitted at trial. Accordingly, in my view, it cannot be said that Centura  
knew or ought to have known that the Interference Claim would fail because it had  
not given formal notice under GC 6.5.4.  
[208] Similarly, the shortcomings in Mr. Stregger’s evidence, while significant, do  
not, in my view, provide an adequate foundation upon which to find that Centura  
knew or ought to have known the Interference Claim would fail. The defendants  
highlighted what they characterized as three fundamental problems with  
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Mr. Stregger’s evidence that they say should have or must have alerted Centura to  
the weakness of the Interference Claim. However, in my view, the impact of those on  
the weight to be given to Mr. Stregger’s evidence was minimal.  
[209] First, the defendants submitted that Mr. Stregger wrongly assumed that  
Centura’s costs were equally distributed throughout the duration of the project and  
he admitted they could have been frontloaded. This did not affect my assessment of  
his evidence because it was not established that the costs were frontloaded.  
[210] Second, the defendants submitted that Mr. Stregger wrongly assumed that  
the Contract price reflected accurate costs estimates and the evidence established  
that Centura knew it had under-budgeted. In other words, the evidence established  
that Centura knew the cost overrun was caused at least in part by a Contract price  
that was too low from the outset. In my view, this significantly overstates the  
evidence on this point. Mr. Stregger acknowledged that this was a potential issue by  
discounting the cost overrun to “account for normally expected inefficiencies [by  
Centura]”. Further, the evidence of Jorge Beja, who was responsible for overseeing  
the estimating work that went into Centura’s tender on the Project, was to the effect  
that only one cost issue arose after the tender was submitted (quoting on the wrong  
gauge of certain steel studs) and, according to him, the impact on the budget was  
only between $20,000 and $25,000. Mr. Beja’s evidence was not undermined on  
cross-examination or shown to be unreliable, and I accept it.  
[211] Third, the defendants submitted that the cost overrun was calculated by  
Mr. Stregger to include “the additional costs incurred to complete change orders, but  
no allowance was made to increase the budget number by the amounts budgeted  
for completion of those change orders”. I believe this statement is incorrect. In  
calculating the cost overrun, Mr. Stregger subtracted the amount he was told  
represented Centura’s actual costs to complete the work, including the costs  
incurred to complete change orders, from the value of the Base Contract Work and  
Extras (which he referred to as “change orders (approved and pending)”.  
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[212] The defendants cited Guilford Industries Ltd. v. Hankinson Management  
Services Ltd. (1973), 40 D.L.R. (3d) 398 (B.C.S.C.) [Guilford] and Tylon Steepe  
Homes Ltd. v. Pont, 2009 BCSC 253 [Tylon], but in my view those cases are not  
helpful comparators.  
[213] In Guilford, the court awarded general damages and exemplary damages for  
abuse of process related to the filing of a builders lien. It was found that the lien  
proceedings were “completely devoid of any legal foundation”, that a representative  
of the lien claimant “knew perfectly well that there was not the slightest hope of  
succeeding on the lien claim”, and that the lien was filed it to “obtain a settlement by  
means of legal ‘blackmail’”. There was evidence that the representative of the lien  
claimant spoke about “throw[ing] on enough liens to keep us tied up for three years”  
and also said “Give me $100,000 and I’ll get off your back”. In addition, no evidence  
was presented to indicate that the lien claimant had done any work on the lands in  
question and if any work was done it was of no value whatsoever.  
[214] In Tylon, the issue was whether a builders lien should be cancelled under  
s. 25 of the BLA on the basis of being “frivolous, vexatious, or an abuse of process”.  
It was not a case in which damages were awarded for the tort of abuse of process.  
The lien was filed for $255,982.00 but $211,571.00 of that amount had already been  
paid. Even then, the court declined to cancel the excessive lien as an abuse and  
instead ordered it secured with reduced security.  
[215] In this case, it cannot be said that the Interference Claim was devoid of any  
legal foundation. Rather, the evidence in support of it was inadequate. The  
question of whether the purpose of the notice requirements in GC 6.5.4 had been  
met could only be answered in the context of all the evidence at trial, including Mr.  
Bowie’s evidence. In addition, Mr. Bowie’s evidence was fundamental to establishing  
the complaints of interference and delay. His evidence suffered from my concerns  
about his credibility. The Interference Claim also depended on Mr. Stregger’s  
evidence and I found that it did not provide a reliable basis upon which to assess the  
actual cost impact of any particular event or circumstance that may have interfered  
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with Centura’s work. However, it was not established that the people at Centura who  
made the decisions with respect to quantifying the lien claim knew or ought to have  
known that the evidentiary foundation for the Interference Claim was materially  
inaccurate, untrue, or otherwise unreliable.  
[216] For these reasons, I am not persuaded that Centura knowingly overstated the  
amount of the lien claim. The defendants’ abuse of process claim is dismissed.  
What is the appropriate rate and method for calculating interest to be  
paid on any amounts found owing to either party?  
[217] A 5.3.1 of the Contract provides:  
Should either party fail to make payments as they become due under the  
Contract or in an award by arbitration or court, interest at the following rates  
on such unpaid amounts shall also become due and payable until payment:  
(1) 2% per annum above the prime rate for the first 60 days.  
(2) 4% per annum above the prime rate after the first 60 days.  
Such interest shall be compounded on a monthly basis. The prime rate shall  
be the rate of interest quoted by HSBC for prime business loans as it may  
change from time to time.  
[218] Centura seeks interest in accordance with that provision. However, no  
submissions were made with respect to when interest would start accruing.  
Specifically, it is not clear to me whether Centura seeks pre-judgment contractual  
interest or post-judgment contractual interest, or both. Of course, it was not practical  
for submissions to be made in advance about whether, given the findings I have  
made, it could be said that 601 Main “fail[ed] to make payments as they [became]  
due under the terms of the Contract”.  
[219] The defendants submit that if Centura is owed any amount in respect of  
unpaid work, it should only be entitled to interest in accordance with the Court Order  
Interest Act, R.S.B.C. 1996, c.79. However, that submission appears to have been  
based on the assumption that Centura would be found liable “for all of the costs  
necessary to complete the project, which were far in excess of any amounts for  
which [Centura] had not yet been paid”.  
 
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[220] In my view, before making any order for interest other than an order that  
interest is to be paid in accordance with the Court Order Interest Act, the parties  
should have an opportunity to make submissions that reflect the findings I have now  
made. If either party wishes to do so they may make arrangements to speak to the  
issue of interest provided that, within 60 days of release of this judgment, they  
submit a request to appear for that purpose. If neither party does so then interest  
shall be paid on the amount awarded to Centura in accordance with the Court Order  
Interest Act.  
What is the appropriate costs award?  
[221] At the conclusion of the trial, I granted the parties leave to make additional  
submissions on costs following release of this judgment. If either party wishes to do  
so they may make arrangements to speak to costs provided that, within 60 days of  
release of this judgment, they submit a request to appear for that purpose.  
Conclusion  
[222] 601 Main was entitled to terminate the Contract under GC 6.5.10, which is a  
“no fault” termination provision. In other words, pursuant to GC 6.5.10, 601 Main had  
the right to terminate the Contract for a delay in the performance of Centura’s work  
of more than 30 days, irrespective of the cause of or fault for the delay.  
[223] Centura has established that, before accounting for deficiencies, the work it  
completed up to the termination of the Contract had a value of $1,037,692.95  
including GST ($794,000 plus 5% GST for Base Contract Work and $194,279 plus  
5% GST for Extras). From that amount there must be deducted $6,237 to reflect  
deficiencies in the tape and fill work on levels three and five and $455,879.33 which  
Centura has already been paid. This leaves $575,576.62 owing to Centura for the  
work it completed up to the termination of the Contract.  
[224] Centura’s Interference Claim is dismissed.  
[225] Centura breached the implied term of the Contract obliging it to perform its  
work in a good and workmanlike manner. However, the only damage that has been  
   
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established as flowing from that breach is $6,237 paid to Crystal to correct  
deficiencies in the “tape and fill” aspect of Centura’s work. That amount has been set  
off against the amount owing to Centura for the work it completed up to the  
termination of the Contract.  
[226] The delay in the progress of Centura’s work did not constitute a breach of the  
Contract.  
[227] The defendants’ abuse of process claim is dismissed.  
[228] The parties have leave to make additional submissions on interest and costs,  
as detailed above.  
Warren J.”  



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