COURT OF APPEAL FOR ONTARIO

CITATION: Tokarz v. Selwyn (Township), 2022 ONCA 246

DATE: 20220325

DOCKET: C68519

Pepall, Thorburn and Coroza JJ.A.

BETWEEN

Edward Tokarz and Jacqueline Tokarz

Plaintiffs (Respondents)

and

Cleave Energy Inc. and

The Corporation of the Township of Selwyn

Defendants (Appellant)

Lesley Albert and Michael Connolly, for the appellant The Corporation of the Township of Selwyn

David A. Morin and Peter Reinitzer, for the respondents Edward and Jacqueline Tokarz

Heard: February 4, 2022 by video conference

On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice, dated February 17, 2021, with reasons reported at 2020 ONSC 4115.

Thorburn J.A.:

I. OVERVIEW

[1] The appellant, The Corporation of the Township of Selwyn (“the Township”) issued a building permit that allowed Cleave Energy Inc. (“Cleave”) to install a metal roof and solar panels on the respondents’, Edward and Jacqueline Tokarz’s, barn.

[2] The Township admitted that its actions fell below the requisite standard of care because: (a) it did not require an engineer to review the solar panel installation before closing the building permit as required under the provisions of the Ontario Building Code, O.Reg. 350/06 (the “Building Code”) and (b) failed to note that the method of connecting the solar panel rails to the roof did not match the design. The trial judge held that the Township was liable for 45% of the respondents’ total damages of $918,084.30. This amounted to $413,137.93.

[3] The Township challenges both the apportionment of damages as between the Township and Cleave, and the damage award.

[4] The Township claims it was held to an unreasonably high standard of care as though it were an insurer of the barn. The Township claims its only duty was to inspect the respondents’ barn to prevent risks to the occupants’ health and safety and that, because the defects in the barn installation posed little or no risk to health and safety, the Township should only have been held responsible for 15% of the losses. The Township claims this apportionment is consistent with the apportionment of liability against municipalities in other similar cases.

[5] The Township also challenges the total quantum of damages awarded to the respondents. It claims that the trial judge provided no reasons to support the quantum of damages and simply accepted the damage award put forward by the respondents’ expert, Mr. Koerth. The Township claims the evidence the trial judge relied on was not evidence proffered by Mr. Koerth, but the evidence of another of the respondents’ experts, Mr. Pitre. Unlike the Township’s estimate, Mr. Pitre’s estimate was unsubstantiated and unsupported by other evidence.

[6] For the reasons that follow, I would dismiss the appeal with respect to the apportionment of liability to the Township, but allow the appeal with respect to the quantum of damages. I would remit the case to the Superior Court for an assessment of quantum of damages.

II. BACKGROUND

[7] The respondents, Edward and Jacqueline Tokarz, commenced an action in negligence against their contractor, Cleave, and the Township.

[8] They claimed that Cleave provided defective workmanship on their commercial-size barn roof and solar panel system.

The Barn Design and Installation

[9] The respondents’ barn design called for a large solar array to be mounted on the metal roof of a wooden barn structure. The panels for the solar array were to be placed at an angle that would best capture the photovoltaic energy of the sun. The barn was to be built to support approximately 1155 solar panels along with the required racking, inverters, panels, disconnects and wiring.

[10] The solar system was meant to be part of the Ontario government’s Feed In Tariff program, regulated by the Independent Electricity System Operator (“IESO”), formerly the Ontario Power Authority. The respondents planned to generate income from the power they produced from their solar system.

[11] Cleave installed the solar system on the respondents’ farm in July 2011. The installation passed final building inspection by the Township’s municipal inspector on July 28, 2011, and the permit to construct was granted on that date.

Deficiencies in the Barn Construction

[12] The parties agree that, in the words of the trial judge, Cleave “botched” the solar panel installation in the following ways: (i) the solar panel rail-to-roof connections installed by Cleave did not match the design Cleave filed with the municipal permit application; and (ii) the improper installation of the rail-to-roof connections resulted in many problems, including excess holes in the roof, damage to the wood structure underlying the roof, bolts hanging exposed in the air on the underside of the wood panels, brackets perforating the steel roof, and leakage due to inadequate sealing of the perforations.

Selwyn’s Position at Trial in Respect of the Negligence Claim

[13] Cleave entered into a Pierringer Agreement with the respondents such that the respondents’ claim against Cleave was settled before the trial began. The claim against the Township therefore proceeded but Cleave did not participate in the trial.

[14] At trial, the Township admitted that the actions of its building department personnel were negligent. The Township did not have an engineer review the solar panel installation prior to closing the building permit, as it was required to do by s. 5.6.2.1 of Division B, Part 5, of the Building Code. Consequently, the Township failed to note on final inspection that the method of connecting the solar panel rails to the roof did not match the design. It also failed to note obvious deficiencies in the work done by Cleave.

[15] The Township did not call its engineer to testify at trial. Instead it provided a $428,834.45 total repair estimate prepared by its expert Mr. Peter Ewald, who was a solar panel system installer. He provided expert costing opinion evidence based on the respondents’ engineer’s scope of repair.

III. THE TRIAL JUDGE’S REASONS

[16] As noted by the trial judge, the Township admitted its negligence:

The Township of Selwyn had a duty to inspect the barn and the solar array. Yet the installation proceeded without appropriate municipal oversight. There were, as the plaintiff argues, obvious deficiencies in the work of Cleave Contracting, that the Township failed to have inspected as required by an engineer. Those deficiencies were not addressed, and the consequent issues with the roof of the barn and the solar array were not rectified.

As indicated the Township does not suggest that it acted as it should have pursuant to the Building Code and concedes its negligence subject to apportionment of liability...

[17] The trial judge therefore focused on the apportionment of liability and the quantum of damages.

[18] He concluded that, in respect of the apportionment of liability:

[A]s the party tasked with building the solar array and the componentry of that array that [Cleave] should bear 55% of the liability for damages. I made this determination on the basis that but for their originating construction flaws, the damage would not have occurred. But that is not the end of the inquiry.

The Township was negligent. That is admitted. A proper inspection would have staunched the issue of the poor construction. The Township abrogated its role under the Ontario Building Code. It failed to do the most significant factor it was called upon to do, have this inspected by an engineer. The Township did not do so. The Township even closed the permit, knowing that the inspection was not done by an engineer.

As a consequence, Cleave was never faced with Orders to Comply or to render the installation safe. Cleave would have been under the clear impression that it was proceeding appropriately and with Township approval.

I have considered the caselaw as provided by the parties. Apportionment of liability I found should be visited 45% against [the Township]. I made this determination largely based on the argument of the plaintiffs in their Closing Statement at paragraphs 180-195 with the caveat that I disagreed with the plaintiffs that Cleave should be fixed with liability in the amount of 10%.

To have done so would have excused Cleave from its contributory share of liability as the contractor. But that does not negate the larger apportionment of liability upon [the Township] based on its violation of the Building Code provisions.

A municipality must abide the building code provisions. The reason is the very essence of the Code requirements placed upon the municipality. My attribution of 45% liability recognizes, I hope, the nature of the negligence of the municipality in this case in the context of the facts of this case. The municipality’s conduct, or better put, its omission and failure to staunch the negligence of Cleave, mandates attribution of liability in conjunction with my assessment of the case law in this amount. [Emphasis added]

[19] In his assessment of the quantum of damages, the trial judge accepted the evidence of the respondents’ expert and held that,

I have carefully considered the parties’ submissions and the evidence. I state unequivocally that the plaintiff’s expert Mr. Koerth defines what a Rule 53 expert is. His evidence was challenged in depth by the defendant. He provided objective and fair evidence. His knowledge of the case was thorough. Mr. Koerth was not in the arena as a combatant, as sometimes happens when expert opinions are challenged.

Inevitably I had to ask myself what is required to put the plaintiffs in the position that they would have been in but for the negligence of others.

I agree with the plaintiffs that the damages as estimated by [their expert] Mr. Koerth are appropriate, … on the assumption that the work to remediate can be done in the Fall. The Fall work allows for less loss of income given that the saturation of the solar energy that can convert to electricity is less in the Fall months.

His damage estimates accord with the best route to take the Tokarz’s whole again and put them in a position which they should have been in: having a large pole barn and a very large solar array to generate income for many years to come without the very significant compromises due to construction defects and Municipal negligence in not discharging its role under the Ontario Building Code.

In this respect I do not agree with the position of the Township that the Township's breach of the applicable standard of care does not extend to the cost of roof replacement. The Township was aware that the roof not only provided the usual reasons for a roof, namely shelter in a dry and safe environment, but was also a support system for the solar panel racking and the not insignificant weight of those panels. This was a very large solar array with the potential to generate substantial income for the plaintiffs.

Simply put, Mr. Koerth’s evidence and his “numbers” accord with what I find are required repairs to put the Tokarz in the position that they would have been in but for the negligence as admitted and proven. The Court has not simply ignored the evidence of the defendants but has juxtaposed it with that of the evidence of the Tokarz expert. Mr. Koerth in coming to the conclusion that it has. Anything less, I find would fix upon the plaintiffs’ costs that they simply should not bear now or in future with respect to this issue. [Emphasis added]

[20] The trial judge held that the total damages were $918,084.30 and ordered the Township to pay 45%, or $413,137.93.

IV. THE ISSUES RAISED BY THE APPELLANT

[21] The issues raised by the appellant Township are:

i. Did the trial judge apply an incorrect scope of duty and standard of care to the Township for failure to comply with the inspection provision in the Building Code which caused him to err in his apportionment analysis?

ii. Did the trial judge err in his apportionment of liability? and

iii. Did he err in assessing the quantum of damages?

V. ANALYSIS

The First Issue: Scope of Duty and The Standard of Care

[22] The trial judge found that the Township breached its duty of care by failing to inspect the work done, signed off on the work, and abrogated its role under the Building Code. The Township submits that its duty is narrow when inspecting a building: it has a duty to ensure that there are no deviations from the Building Code that could affect public health and safety.

[23] The Township relies on Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 23, wherein Bastarache J. for the court discussed the purpose of the Building Code:

The legislative scheme is designed to ensure that uniform standards of construction safety are imposed and enforced by the municipalities. …The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects. The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the Act. Therefore, municipalities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of their inspection powers. [Emphasis added]

[24] In White v. The Corporation of the Town of Bracebridge, 2020 ONSC 3060, 4 M.P.L.R. (6th) 271, at para. 48, DiTomaso J. explained that,

The Ontario Building Code provides minimum standards for construction so that owners of houses will be safe from poor construction. The standard of care is, at a minimum, the Ontario Building Code’s requirements. At trial, Mr. Koerth testified that the minimum standards in Part IX of the OBC could not be ignored without risking the safety of the building’s occupants. [Emphasis added]

[25] Contrary to the Township’s assertion, the trial judge did not suggest that the mere existence of defects was sufficient to hold the Township liable. Rather, the Township was held liable for failing to perform the inspection it was required to conduct under the Building Code, resulting in the failure to identify and order the deficiencies to be remedied.

[26] In any event, the trial judge was clearly alive to the purpose of the Building Code, and held that, “Water and panels that are not installed properly are anathema to safety in this paradigm”. He found as a fact that, “This barn is not a safe haven with these defects.” In addition, the respondents’ expert, Mr. Koerth, testified that he had concerns about the risk of fire.

[27] For these reasons, I do not agree that the trial judge misapprehended the scope of the appellant’s duty of care.

The Second Issue: Apportionment of Liability

[28] The Township claims that the trial judge offered no authority to support his apportionment of liability.

[29] The Township therefore claims that the trial judge’s decision to apportion 45% of the damages to the Township constitutes a palpable and overriding error given the minimal likelihood of harm to health or safety that arose from its negligence. The Township further claims that 45% is outside the range of liability usually imposed on municipalities.

[30] Sections 1 and 3 of the Negligence Act, R.S.O. 1990, c. N.1, provide that:

1 Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

3. … the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

[31] Apportionment of liability is an inquiry into which party failed most markedly to live up to their expected standard of care: Parent v. Janandee Management Inc., 2017 ONCA 922, at para. 15. The court in Ingles at para. 57 held that,

The apportionment of liability is primarily a matter within the province of the trial judge. Appellate courts should not interfere with the trial judge’s apportionment unless there is demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles. [Emphasis added]

[32] Likewise, this court in Banihashem-Bakhtiari v. Axes Investments Inc. (2004), 2004 36112 (ON CA), 69 O.R. (3d) 671 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 145, at para. 8, held that, “A re-apportionment of liability sought on appeal will only be granted in strong and exceptional cases.”

[33] In Ingles, the court held that when conducting a building inspection pursuant to the Building Code, the city was “not required to discover every latent defect” in construction; it is, however, “required to conduct a reasonable inspection in light of all of the circumstances” and it will be “liable for those defects that it could reasonably be expected to have detected and to have ordered remedied”: Ingles at paras. 20 and 40.

[34] In this case, the trial judge held that “a proper inspection would have staunched the issue of the poor construction”; in other words, had the Township performed an inspection to the standard required of it, it would have detected the construction defects that gave rise to the respondents’ damages. Instead, the Township failed to properly inspect the property and Cleave was never faced with Orders to Comply or to render the installation safe.

[35] A township falls “well below the required standard of care” when it fails to properly review an application for a building permit, thereby completely failing to discharge its duty to enforce the Building Code “for the health and safety of the public”: Breen v. The Corporation of the Township of Lake of Bays, 2021 ONSC 533, 2021, 153 O.R. (3d) 514, at paras. 92-93 and 115. The failure to properly review building plans in circumstances like these is a “marked departure” from the standard of care: Mortimer v. Cameron (1994), 9 M.P.L.R. (2d) 185 (Ont. Gen. Div.); rev’d in part (1994) 1994 10998 (ON CA), 17 O.R. (3d) 1 (C.A.); leave to appeal refused, [1994] S.C.C.A. No. 150.

[36] In such cases, trial judges are afforded wide discretion in apportioning damages.

[37] In this case, the trial judge held the Township responsible for 45% of the damages to the barn.

[38] Moreover, the Township’s claim that it is not clear it would have issued an order to comply against Cleave even if it had discovered the defects in the installation, is belied by the testimony of the Township’s Chief Building Official that “I would have involved the contractor and perhaps the owner as well…”.

[39] Whether the order was sent to the owner or the contractor, it is clear that Cleave, as the contractor, would have been made aware of the existence of the need to comply, had such an order been given, to ensure the building was safe.

[40] In this case, the Township failed to properly review the application for a building permit and discharge its duty to enforce the Building Code “for the health and safety of the public” by conducting a reasonable inspection as required by the Building Code. The Township allowed the permit to be issued without performing an inspection that would, on the findings of the trial judge, have “staunched” the poor construction which led to the respondents’ damages.

[41] The trial judge considered the case law provided to him. Contrary to the Township’s submission, in some circumstances, liability has been imposed on municipalities of between 50 and 100%: See Wood v. Hungerford (Township) (2004), 3 M.P.L.R. (4th) 38 (Ont. S.C.), rev’d on other grounds (2006) 24 M.P.L.R. (4th) 45 (Ont. C.A.); Riverside Developments Bobcaygeon Ltd. v. Bobcaygeon (Village) (2004), 45 M.P.L.R. (3d) 107 (Ont. S.C.), aff’d (2005) 30 M.P.L.R. (4th) 29 (Ont. C.A.); Chapeskie v. Lake of Bays (1999), 3 M.P.L.R. (3d) 233 (Ont. S.C.) and Breen.

[42] The trial judge’s apportionment of liability was not based on a palpable and overriding error of fact or incorrect interpretation of the law. Nor was there a flawed assessment of the Township’s conduct. As such, and keeping in mind the substantial deference owed to trial judges in the apportionment of liability absent an error of law or misapprehension of fact, I find no palpable and overriding error and would reject this ground of appeal.

The Third Issue: Quantification of Damages

[43] A damages award is meant to be compensatory, to put the plaintiffs in the same position they would have been in but for the negligence of the other party: Athey v. Leonati, 1996 183 (SCC), [1996] 3 SCR 458, at para. 32.

[44] A trial judge’s quantification of damages attracts significant deference: de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27.

[45] The trial judge is presumed to have considered the evidence in its entirety, absent proof that an omission in his reasons was due to his misapprehension or neglect of the evidence: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72.

[46] An omission is a material error “if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 15; Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2019 SCC 28, [2019] 2 SCR 406, at para. 70.

[47] The Township argues that in this case, no deference is owed to the trial judge’s assessment of the quantum of damages. For the reasons that follow, I agree.

(i) The trial judge mistakenly concluded that the damage estimate was Mr. Koerth’s

[48] At trial, the Township admitted that the remediation of the steel roof and removing and installing the solar system was warranted. The respondents relied on one expert, Mr. Ron Koerth, to testify on what repairs were required. They relied on another expert, Mr. Jean-Marc Pitre, to provide costing opinion evidence.

[49] Mr. Koerth is an engineer who was qualified by the trial judge as an expert “in the area of building analysis. Structure failure analysis. Costing analysis, and all matters related to the construction of buildings and the compliance with the Ontario Building Code.” Mr. Pitre was an installer of solar panels in Sudbury.

[50] The trial judge found Mr. Koerth to be an exemplary witness. This is evidenced by the trial judge’s reference to Mr. Koerth’s evidence as follows:

... I had to ask myself what is required to put the plaintiffs in the position that they would have been in but for the negligence of others. The answer was what Mr. Koerth said it should be.

Simply put Mr. Koerth's evidence and his “numbers” accord with what I find are required repairs to put the Tokarz in the position that they would have been in but for the negligence as admitted and proven.

The Court has not simply ignored the evidence of the defendants but has juxtaposed it with that of the evidence of the Tokarz expert[,] Mr. Koerth in coming to the conclusion that it has. Anything else, I find would fix upon the plaintiffs’ costs that they simply should not bear now or in future with respect to this issue.

[51] However, the trial judge seems to have mistakenly believed that the estimate of damages he adopted – found at “page 60 of the plaintiffs’ [respondents’] submissions at paragraph 245” – was Mr. Koerth’s estimate. Those damages were actually the sum of several different estimates, including: an estimate for performing structural repairs to the barn prepared by a company called Bel-Con, and an estimate for replacing the solar array and performing structural repairs to the barn prepared by Mr. Pitre. Mr. Koerth did not make any of the estimates found at paragraph 245 of the plaintiffs’ submissions, and in fact, Mr. Pitre’s estimate included $254,000 for a truss repair that Mr. Koerth had estimated should cost much less.

[52] Mr. Koerth did, however, testify that Mr. Pitre’s total estimate of $674,000 before tax was “a lot more reasonable” than Mr. Ewald’s estimate of $375,000 before tax.[^1]

(ii) Flaws in Mr. Pitre’s Estimate

[53] There are also concerns with Mr. Pitre’s estimate.

[54] First, Mr. Pitre’s estimate was not itemized. He simply provided one global figure for “removal of all 1,155 solar panels; disposal or rails and hardware then re-installation of exist[ing] panels on new Enviro Energy supplied racking.” The quote was “a budgetary estimate for discussion purposes only.”

[55] Second, Mr. Pitre was unable to provide an explanation of the breakdown of his estimate. He said he created a pro forma database, entered the information, and used a formula to arrive at his estimate. However, he was unable to provide the information he put into the database or the formula upon which the calculation was based, and he never went to inspect the barn itself.

[56] Third, there was no specific allocation for truss repairs. We only know that Mr. Pitre allocated $254,000 for the trusses and structural repairs because $254,000 was the difference between estimates he made in 2013 and 2017 for the same scope of work, and on cross-examination, he testified that the difference came down to the cost of the truss repair.

[57] Fourth, it is not clear how or why Mr. Pitre’s estimate so greatly exceeded that of Mr. Ewald and even that of Mr. Koerth, whose testimony the trial judge preferred. Mr. Pitre justified his $254,000 estimate for “the trusses” on the basis that the “integrity of the roof on the inside is one of the highest costs of that difference and where that $250,000 is.” He explained that the difference between the estimates was meant to cover the labour and material cost of doing the structural repairs to the roof. By contrast, Mr. Koerth estimated the cost of the truss repair to be $25,000 plus $7,000 in engineering costs and taxes; and Mr. Ewald estimated the cost of the repair to be about $12,705 plus engineering fees and taxes.

[58] Fifth, Mr. Pitre incorrectly believed that all materials used for the solar panel system had to be sourced from Ontario, which would raise their cost. In fact, only 50% of the materials had to be sourced from Ontario.

(iii) Flaws in the Trial Judge’s Assessment of Damages

[59] Moreover, the trial judge’s assessment of the damage award was flawed as:

i. The trial judge failed to break down the cost of the remedial work in support of the estimate that he accepted (by simply adopting Pitre’s lump sum estimate);

ii. He failed to weigh and assess the evidence of Mr. Pitre’s expert opinion for the respondents and Mr. Ewald’s for the Township, and instead, simply adopted the damages claim provided by Mr. Pitre (mistakenly referred to as that of Mr. Koerth) with little discussion of its many shortcomings; and

iii. The trial judge seems to have committed a palpable and overriding error by accounting for the cost of replacing the roof trusses twice: once when he accepted the Bel-Con damages assessment for the barn (which included a $10,000 remediation for the trusses in its $136,470.10 total), and once when he accepted Mr. Pitre’s estimate for the solar panels, which also included a cost of $254,000 for the trusses.

(iv) Analysis of the Quantum of Damages

[60] I have concerns about the trial judge’s adoption of a damages award that did not include a detailed breakdown; contained what seems to have been an inflated figure for truss repair; and was not adjusted in any way for the experts’ errors on the correct proportions for domestic content.

[61] The trial judge could not have meant to include the cost of the truss repair twice. The fact that he did so affected his conclusion on the total quantum of damages; it increased the quantum by up to $254,000.

[62] I am also troubled by Mr. Pitre’s inability to explain the formula which formed the basis of his costing estimate. He claimed that the reason he was unable to explain the formula for arriving at his estimate was that it was based on a formula he devised that would take up to 45 hours to reproduce.

[63] The trial judge failed to give Mr. Pitre’s opinion the lesser weight it deserved given that it rested on unproven material facts: Marchand v. The Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.).

[64] The respondents also candidly concede that there was extremely limited discussion of the quantum of damages on the part of the trial judge.

[65] The trial judge’s very limited discussion and assessment of the quantum of damages, and his failure to address the concerns about Mr. Pitre’s evidence as set out above, lead me to conclude that the presumption that the trial judge considered the evidence respecting the quantum of damages in its entirety is rebutted.

[66] The solution, however, cannot be to replace the respondents’ assessment of damages with that of the Township’s expert, Mr. Ewald.

[67] The Township’s expert, Mr. Ewald, did provide a line by line breakdown of the cost of material, labour and expenses as well as contingencies for remediation including the truss remediation.

[68] However, Mr. Ewald’s estimate is also problematic as, for example,

i. Unlike Mr. Pitre, Mr. Ewald was not prepared to carry out the repairs for the amount of his estimate because he is not a contractor; this fact caused Mr. Koerth, whose testimony was accepted by the trial judge and is not in question, to refer to his estimate as “less reasonable” than Mr. Pitre’s;

ii. Although the trial judge seems to have double-counted the estimates for truss repair (using both the $254,000 from the Pitre estimate and $10,000 from the Bel-Con amount used by Mr. Ewald), it is not clear what the amount for truss repair should be and why;

iii. Mr. Ewald also erred in assessing the amount of Ontario product required. He assumed that a “certain percentage” of product would be sourced from Ontario, but he believed obtaining the materials from Ontario would be difficult, if not impossible. He said he would seek an IESO waiver of the domestic content requirement. Mr. Ewald was not qualified to testify on whether the Independent Electricity System Operator (“IESO”) would approve the waiver. He said it was “fair” to say that his estimate was conditional on obtaining the IESO waiver. It is not clear exactly how that would affect his estimate, and the trial judge made no findings to assist this court in understanding this evidence.

[69] Based on the above, there are serious concerns with both the Township’s and the respondents’ assessment of damages and this court is not in possession of all information to enable it to quantify the damages.

[70] For these reasons, further analysis and further evidence is required to assess the quantification of damages and address these concerns: TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, at paras. 83, 85. The evidence is not before this court such that this court can substitute its award for that of the trial judge.

VI. CONCLUSION

[71] For the above reasons, I would allow the appeal in part, set aside the award of damages and remit the action to another judge of the Superior Court for an assessment of damages.

[72] The parties agreed that the successful party on appeal be awarded $30,000 in costs. Given the respondents’ success on the first two issues and the divided success on the third, I would award the respondents $20,000 in costs.

Released: March 25, 2022 “S.E.P.”

“J.A. Thorburn J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. Coroza J.A.”

[^1]: Mr. Koerth referred to “Mr. Brunskill’s” estimate. Peter Brunskill is an engineer who did not testify, but who instructed Ewald. Brunskill provided options for repairs and Ewald costed the options.