In Transcona Roofing Ltd. v. Marrbeck Construction Ltd., 2023 MBKB 104, aff’d Winnipeg Condominium Corporation No. 40 v. Marrbeck Construction Ltd., et al., 2024 MBCA 83 (41613), the Manitoba courts addressed waiver, consultant authority, and the enforceability of no-waiver clauses under the Canadian Construction Documents-2 (CCDC) contract. The dispute arose from a condominium envelope remediation project in Winnipeg. Marrbeck, the general contractor, sued the owner, WCC 40, for ~$1.49 M in unpaid certified and extra work; its subcontractor Transcona Roofing claimed ~$1.18 M from Marrbeck and WCC 40. WCC 40 counterclaimed for over $4.7 M in deficiencies.
The King’s Bench granted summary judgment to Marrbeck and Transcona. The motion judge found WCC 40 had waived the requirement for signed change orders by acquiescing to extras and failing to invoke the contract’s dispute resolution process. The consultant, CKP, was authorized to certify payments and direct changes, and its findings of minor deficiencies ($4.7 M). WCC 40’s failure to allow Marrbeck and Transcona to correct deficiencies also breached its duty to mitigate. Summary judgment was appropriate despite conflicting expert evidence, given the robust record.
On appeal in Winnipeg Condominium Corporation No. 40 v. Marrbeck Construction Ltd., et al., 2024 MBCA 83 (41613), WCC 40 argued that the “no-waiver-except-in-writing” clause barred any finding of waiver and that CKP exceeded its authority. The Court of Appeal rejected these arguments, affirming that conduct can evidence waiver despite a formal no-waiver clause when the owner knowingly benefits from and acquiesces to the work. The Court further held that CKP’s determinations were within its authority under the CCDC and binding on WCC 40 absent timely dispute. The standard of review for negotiated, industry-standard CCDC contracts is deferential: palpable and overriding error absent an extricable legal question. The Court modestly reduced damages to reflect a more precise deficiency holdback but otherwise upheld the judgment. The Supreme Court of Canada denied leave to appeal on May 15, 2025.
Key principles affirmed:
- Waiver & Acquiescence: Owners may waive formalities by conduct, even with a no-waiver clause.
- Mitigation: Owners cannot claim set-off if they deny contractors the chance to cure.
- Consultant Authority: Consultants’ certifications and directions are binding if within scope.
This case underscores how courts enforce the practical operation of CCDC contracts against formalistic defences.