Background:
The Plaintiff municipality owns Road 122 between Line 15 and Line
16, which is the road that is the subject matter of this case. The
Defendants are property owners along that section of the road.
The Defendants requested that the Plaintiff pave the said road,
which had previously been a gravel road. The Plaintiff agreed to do
so provided that the Defendants donate a portion of the paving costs
to the Plaintiff.
Initially the Defendants offered to donate a lump sum of $ 25,000.00
to the Plaintiff. That offer was rejected by the Plaintiff. In May
2004, the Plaintiff counter-offered with a proposal that the
Defendants pay $ 36,269.44. The Defendants rejected that
counter-offer as being more than they wanted to spend.
After further discussions between the Plaintiff and a representative
of the Defendants, the Defendants signed a document dated June 28,
2004 (Exhibit 1 - page 7) which formed the basis on which the
Plaintiff had the said road paved.
Everyone agrees that the asphalt was to be charged at the rate of $
51.50 per tonne. Everyone also agrees that the total amount of
asphalt used was the amount for which the Plaintiff claimed payment.
After the paving was done, the Defendants paid the Plaintiffs $
27,341.43. However, the Plaintiff was of the opinion that the
Defendants owed $ 31,372.73. a difference of $ 4,031.30. At the
commencement of the trial, the Defendants admitted owing a further $
214.91. Thus, the amount in dispute is $ 3,816.39.
The agreement dated June 28, 2004 refers to pavement which is 6.1
metres wide, 32 millimetres deep and 2 kilometres long.
The parties agree that the asphalt is wider in places than 6.1
metres. The excess width is as much as 28 centimetres or 11 inches
(see Exhibit 1 - page 20). In some places it is thicker than 32
millimetres. Derek Nunn, the construction manager of the paving
contractor, testified that it is difficult to pave exactly a width
of 6.1 metres and a depth of 32 millimetres since there was nothing
to define the edges and the surface was not perfectly level. (The
Plaintiff prepared the road for asphalting.) But Mr. Nunn did state
that a 32 millimetre thickness could be maintained. Mr. Nunn also
testified that it is possible to have a uniform width if there is
something to define the edges.
There is a cement bridge on the said road that is approximately 40
feet in length. Extra asphalt was used around the bridge to build
gutters to aid in the runoff of water. Mr. Nunn said that the
discussion between the Plaintiff and the paving contractor's
representative about the paving of the gutters would have taken
place about 15 minutes before the work on the gutters was actually
done.
Even though the Defendants' agreement requested the opportunity for
them to monitor the project, that appears not to have been allowed.
There was no contact between the paving contractor and any of the
Defendants. In fact, the Plaintiff asked the Defendants to stay back
while the asphalt was being laid.
Plaintiff's Position:
The Plaintiff's position is that the Defendants agreed to pay for 60
% of all of the tonnes of asphalt that were used. If this position
is found to be the correct one, everyone agrees that the Defendants
owe the Plaintiff a further $ 4,031.30.
Defendants' Position:
The Defendants' position is that they are only required to
contribute to the amount of asphalt required to fill a space that is
2 kilometres long by 6.1 metres wide by 32 millimetres deep. If this
is the correct position, the Defendants only owe the Plaintiff a
further $ 214.91.
Sample Agreement:
On May 7, 2004, the Plaintiff sent a letter (Exhibit 1 - page 29) to
a representative of the Defendants. Enclosed with that letter was a
sample of an agreement (Exhibit 1 - page 30) which the Plaintiff
suggested could be used and signed by the Defendants. The relevant
parts of it read as follows:
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June 21, 2004
Paving of Road 122 between Line 15 and Line 16 'Downie Ward'
to be completed in 2004. (2 kilometers)
To accomplish this improvement, we the undersigned pledge
equal donations upon completion of the project,…
This is based on a cost of paving (32 mm x 6.10m for 2
kilometers) with 60 % of the unit price of $ 51.50 to be
paid equally by the undersigned. |
Muriel King, the Clerk-Treasurer of
the Plaintiff, testified that the measurements of the road came from
the documents that the Plaintiff used for the bidding process with
prospective contractors. She also stated that the contract with the
paving contractor was on a cost per tonne basis, and not on the size
of the road.
Signed Agreement:
Central to the dispute is the wording of the agreement dated June
28, 2004 and signed by the Defendants (Exhibit 1 - page 7). The
relevant parts of it read as follows:
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We the undersigned agree to
donate collectively upon the completion of paving of Road
122 from Line 15 to Line 16 (32 mm x 6.1 m x 2 km) as per
Quote and Information to Bidders as per your resolution and
sample agreement of June 21, 2004….
Resolution "That the Council of the Township of Perth South
do hereby offer residents on Road 122, Line 15 to Line 16,
to pave their road if they contribute a donation of 60 % of
the unit price of 51.50 per tonne. Carried"
from sample agreement offered by the Township of Perth South
"This is based on a cost of paving (32 mm. x 6.1 m x 2
kilometres) with 60 % of the unit price of $ 51.50 per tonne
to be paid equally by the undersigned"
To facilitate completion of this project, we request your
acceptance of the change from "equally" to "collectively",
and the opportunity for the residents to monitor quantities
of asphalt delivered to the project, and maintain records of
appropriate measurements of the width, thickness and length
of the paving project. |
Dave Stacey, one of the Defendants,
was actively involved in the discussions with the Plaintiff about
the paving of the road. He testified said that the intent of the
final agreement was to adhere to the wording that the Plaintiff had
provided in the sample agreement. But he also said that the
landowners adjacent to the road wanted some control over the
quantity of asphalt that was used. The landowners were trying to
limit their exposure and achieve a fixed dollar amount. His evidence
was that the end result was more road than what the Defendants
wanted to pay for. He said that there was no prior indication that
the asphalt would be wider or thicker than what the agreement said.
Mr. Stacey also stated that the Defendants were not made aware of
any extra asphalt being required at the bridge.
Analysis:
Derek Nunn testified that the Plaintiff provided him with
"approximate distances and widths." Mr. Nunn stated that the amount
of asphalt referred to in the tender documents was an estimate only.
In fact, in Exhibit 2, it is clear that the quantity is an estimate
only because it says "Est. Quantity - tonne" at the top of the
pertinent column. Mr. Nunn testified that he wasn't worried about
the actual number of tonnes because his company was paid by the
tonne.
Mr. Storey testified that when he looked at the tender documents, he
believed that there were some discrepancies. As an example, he
pointed out that one tender document (Exhibit 1 - page 25) showed an
estimated 1166 tonnes of asphalt being required for a 2 kilometre
stretch of road, when a 5.2 kilometre section only required 1,750
tonnes, even though the widths and thicknesses were the same.
The agreement that the Defendants signed does not say that they
would only pay for a road that was 32 mm. by 6.1 m. by 2 km.
But the agreement also does not say that those measurements are
"approximately" or "more or less."
Everyone knew that there was a bridge on the section of road in
question. But nothing was said about it in the agreement. In fact,
based on the evidence of Mr. Nunn, the extra asphalt that was used
at the bridge wasn't even discussed between the Plaintiff and the
contractor until just minutes before the asphalt was laid.
According to the Defendant's calculations found on page 21 of
Exhibit 1 (which were not disputed by the Plaintiff), the extra
asphalt used at the bridge amounted to 60.96 tonnes. At $ 51.50 per
tonne, that extra asphalt accounts for $ 3,139.44 of the $ 3,816.39
in dispute.
Based on the evidence, I find that the extra asphalt used at the
bridge was an "extra" for which the Defendants did not agree to pay.
Thus, the only remaining question is whether the Defendants have to
pay $ 676.95, which is attributed to the additional asphalt used
because of the variations in width and depth.
The Plaintiff urges the Court to find that the dimensions in the
contract are approximate only and that the price is really to be
determined by the total amount of asphalt used. In support of that
argument, the Plaintiff points out that both sides rejected a "fixed
dollar amount" agreement. Instead, the final dollar amount is based
on a price per tonne of asphalt actually used.
The Defendants, on the other hand, argue that the dimensions in the
agreement are very clear - 32 millimetres deep by 6.1 metres wide by
2 kilometres long.
The wording of the agreement that the Defendants signed was clearly
based on the sample agreement provided to them by the Plaintiff. The
Plaintiff could have used words in the sample agreement such as
"estimated," "approximately" or "more or less." As I have already
stated, the Plaintiff did use the word "estimated" in the tender
documents. But the Plaintiff, for whatever reason, chose not to use
any of those words in the sample agreement.
There is a Latin maxim which, in its short form, says "contra
proferentum." That means "the words of the contract are to be
construed more strongly against the person offering them." The
Plaintiff urges the Court to find that the words of the signed
agreement were offered by the Defendants and therefore should be
construed against them. But I find that the relevant words of the
signed agreement are actually derived from the sample agreement
which was prepared by the Plaintiff. Therefore, in this case any
ambiguity in the agreement will be resolved in favour of the
Defendants.
It is clear from the evidence that the Plaintiff and its contractor
had control of the job-site. Therefore, why should the Defendants
bear the consequences if the asphalt is deeper or wider than
specified in the agreement ?
Based on all of the evidence given in this case, I find that the
agreement between the Plaintiff and the Defendant was to pave a road
with precise dimensions. Accordingly, I find that the Defendants do
not have to pay for the additional asphalt that was used because of
the variations in width and depth.
Result:
For the reasons given, there will be judgment in favour of the
Plaintiff against all of the Defendants jointly and severally in the
total amount of $ 214.91, being the amount that the Defendants
admitted at the commencement of the trial to be still owing.
I want to commend both Mr. Culliton and Mr. Abercrombie for the way
that they conducted the trial (including submitting a Joint Document
Brief, agreeing on certain items and the calling of witnesses).
Costs:
Hopefully the parties can agree on costs. However, if they cannot, I
would ask them to contact the Court Clerk within 21 days to arrange
for a telephone conference call with myself to deal with the issue
of costs.
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Norman B. Pickell, Deputy Judge
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Arbitration Decisions - Norman Pickell - Township of Perth South v.
Turner
