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arguably resolved any contractual
ambiguity in the University’s favour,
without any apparent protest or mis-givings.
Only after a potential profes-sional
negligence claim surfaced did
RKA raise an issue of interpretation.
Even then, the issue was only raised af-ter
the principal owner involved had
read the Service Agreement for the
first time.
Throughout the execution of the con-tract,
the University of Calgary acted in
accordance with its interpretation of the
contract in periodically documenting all
fee increases through change orders. Each
change order stated that it was modifying
the original contracted fixed fee. Riddell
signed off on each one without raising any
disagreement as to what the change or-ders
meant. The court found that post con-tractual
conduct can be considered in the
resolution of ambiguity in the contrac-tual
language used.1 Essentially, the well-managed
post-contractual conduct of the
University of Calgary played an important
role in its ultimate success in court.
Extras and back-charges
Impact Painting Ltd. v. Man-Shield (Alta)
Construction Inc., 2017 ABQB 743, was an
action between the general contractor and
the painter subcontractor arising from the
construction of a residential retirement fa-cility.
Upon completion of the project, the
paint subcontractor, Impact Painting, is-sued
invoices for extras, which were dis-puted
by Man-Shield. Impact claimed for
$237,676.12. Man-Shield counterclaimed.
What jumps out of the decision is that
Impact Painting had almost no documen-tary
evidence to show for nearly a quarter
LEGAL
JEFF WHYTE / SHUTTERSTOCK.COM
In the case of Riddell
Kurczaba Architecture
Engineering Interior
Design Ltd. v. Governors of
the University of Calgary,
the court decided in the
university’s favour
thinkbigmagazine.ca | Quarter 2 2018 | Think BIG 45
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