CITATION: RVL Masonry Ltd v. Chijindu, 2016 ONSC 5810
DIVISIONAL COURT FILE NO.: DC-14-00753-00 DATE: September 16, 2016
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Molloy, C. Horkins, Howard JJ.
BETWEEN:
RVL Masonry Ltd.
Plaintiff/Respondent on Appeal
– and –
Christian Chijindu and Nkiruka Ochei
Defendants/Appellants
AND BETWEEN:
Christian Chijindu and Nkiruka Ochei
Plaintiffs/Appellants
-and-
Christian Chijindu, acting in person and as Solicitor for Nkiruka Ochei
Adriana Carnevale and M. Williams, for the Respondents
Robert Van Londen
Defendant/Respondent
HEARD at Oshawa: September 14, 2016
MOLLOY J. (orally):
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] The appellants (the “owners”) were building a home in Hampton, Ontario. RVL Masonry Ltd. (“RVL”) was hired as a subcontractor to do masonry work. RVL completed its work and takes the position that it last provided goods and services to the premises on May 9, 2013. The owners did not pay RVL’s final invoice, and RVL filed a claim under the Construction Lien Act, R.S.O. 1990, c. C.30 (“the Act”). The owners then brought a civil action in damages against RVL for, inter alia, slander of title, claiming a total of $200,000 in damages.
[2] The two actions were heard together before Glass J. for three days commencing December 3, 2014, at the conclusion of which, the trial judge granted judgment to RVL in the amount of $14,714.12 and dismissed the owners’ cross-action. The trial judge ordered costs to be paid by the owners in the amount of $30,000.
B. DECISION OF THE TRIAL JUDGE
[3] The trial judge found that the terms of the contract between the owners and RVL were set out in a quote provided by RVL to the owners’ agent, which was accepted by the owners. The fees were solely for the installation of stone and brick. The materials were purchased separately by the owners.
[4] The trial judge held that the RVL contract required the owners to pay a square footage fee for the stone laying ($10 a square foot), and a per-brick rate for the bricklaying ($1.20 per brick). The trial judge held that, based on those rates, the amount owing to RVL at the completion of its contract was just over $14,000. There was a dispute as to when RVL did its last work on the property. The trial judge held that RVL attended the site on May 9, 2013 to finish its remaining work, and that work amounted to 2.332 percent of the entire contract, with a value of $1,340.00. Based on those findings, the lien claim was properly filed and perfected under the Act. Given the validity of the lien and the success of the RVL claim, he found the owners’ cross-claim to be without merit and dismissed it.
[5] Finally, the trial judge fixed costs in the construction lien action, and the owners’ action together in the amount of $30,000.
C. ISSUES ON APPEAL
[6] The appellants allege three errors by the trial judge as follows:
The trial judge erred in finding that RVL had preserved its construction lien within the time stipulated in the Act;
The trial judge erred in his determination of the nature and terms of the contract between the parties; and
The costs awarded were excessive in light of s. 86(2) of the Act.
D. STANDARD OF REVIEW
[7] There is no dispute between the parties as to the standard of review. They agree that the principles established by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, apply. The trial judge is required to be correct on questions of law. However, deference is owed to findings of fact. Factual findings may only be interfered with on appeal if the trial judge has committed “a palpable and overriding error.” Questions of mixed fact and law are also reviewable on the palpable and overriding error standard, except that where the question of law is clearly extricable from the factual findings, it must be correct.
[8] The Supreme Court of Canada also held in Creston Moly v. Sattva Capital, 2014 SCC 53, [2014] 2 S.C.R. 633, that questions of contractual interpretation are questions of mixed fact and law and reviewable on the palpable and overriding error standard.
E. ANALYSIS
i. Terms of the Contract
[9] The owners argue that the terms of the agreement are that they are to pay $10 per square foot for both bricklaying and stonework. The trial judge rejected that argument, and in particular rejected the argument that the same price and method of calculation would apply for brick and stone. He held as follows at paragraphs 6, 10, and 13 of his reasons:
[6] The documentation from Don & Son for stone and brick and from RVL Masonry Ltd. for its method of charging for laying brick and stone are consistent with what RVL Masonry Ltd. has claimed. That is a square footage fee for the stone laying and a per brick charge for the bricks. There were 8400 bricks being charged for installation at $1200 per 1000 bricks. An additional 2970 bricks were needed to complete the work by RVL Masonry Ltd. The total invoices from RVL Masonry Ltd. was over $32,000 with HST so that when the amount paid by the Defendants was deducted, there was still a balance of over $14,000 owing.
[10] Mr. Chijindu is not a brick layer or stone mason. The people who know how to do the pricing for such work are people in that field of work. The method of calculation explained by Mr. van Londen is consistent with what Mr. Walker had reported to Mr. Chijindu when he told the Defendants that he had to calculate out the pricing with the number of brick and stone to be supplied by Don & Son. That is how the $24,508 figure was derived before the bricklaying and stone masonry work commenced.
[13] I am satisfied that RVL Masonry Ltd. pricing is what is to be applied and that Mr. Chijindu is in error with his method of calculation. He attempted to challenge the quote from RVL Masonry Ltd. as if the stone and brick were the same materials, but it is obvious from the documents and the explanation from Mr. van Londen that the reference to same materials is the materials used by RVL Masonry Ltd. to lay the brick and stone rather than the brick and stone themselves. This is a logical interpretation because RVL Masonry Ltd. did not buy the bricks and stone; rather, the Defendants did so. To suggest during the trial that the quote from RVL Masonry Ltd. for the bricklaying and stone masonry work was to include the actual bricks and stone when the stone masons had no involvement with the purchase of those items does not make sense. It amounts to playing games with the words as if to confuse deliberately everyone involved with the trial. I can only conclude that Mr. Chijindu in his testimony was being less than forthright about his interpretation of the quote. If that is a correct conclusion, the next natural inference is that Mr. Chijindu was looking for ways to reduce his costs for the construction of the house with respect to bricklaying and stone masonry.
[10] These conclusions by the trial judge are findings of fact and findings of credibility that are clearly rooted in the evidence before him. His conclusions are reasonable and supported by evidence he found to be credible and logical. There is no palpable and overriding error, and no basis to interfere.
[11] Mr. Chijindu argued that the trial judge erred in law by taking into account a quote presented by RVL on November 9, 2012. Relying on Sattva, he submitted that it was an extricable legal error for the trial judge to rely on a document that had not been seen by one of the parties (i.e. Mr. Chijindu) at the time the contract was made. There is no merit to this argument. The RVL quote was presented to Mr. Chijindu’s agent, Mr. Walker, who was managing the construction project. Mr. Chijindu and Mr. Walker had some communications about it, and Mr. Chijindu accepted the quote, which he then instructed Mr. Walker to communicate to RVL. The quote itself is clear on its terms. Mr. Chijindu cloaked Mr. Walker with authority to bind him. Mr. Chijindu did not himself contact RVL, nor did he ask to see the quote, although it was clearly available to him if he wished to see it.
[12] There was no breach of the principles in Sattva, and no error in law by the trial judge.
ii. Validity of the Lien
[13] Whether or not the lien was properly filed and perfected depends on the date the last work was performed on the site. On this issue, the trial judge found as follows in paragraph 14 of his reasons:
The Construction Lien Act provides time lines for lien claimants to preserve and perfect their liens. In this case, much of the RVL Masonry Ltd. work was done by the time that the Defendant-owners provided their cheque of $17,791.85 on March 20, 2013. I accept that not all the work of RVL Masonry Ltd. was completed at that time. I accept that RVL Masonry Ltd. attended the job site on May 9, 2013 to finish remaining work. That involved about $1,340 of work. That work value amounts to 4.657% of the entire bricklaying and masonry work. The actual cost to RVL Masonry Ltd. for its staff to attend to finish the work was $674, and that amounts to 2.332% of the entire RVL Masonry Ltd. contract. 1% of the total bricklaying and stone masonry work would have been over $1,000. The Act provides that the work is deemed to be completed when remaining work is between the lesser of 1% and $1,000. Their lien claim was preserved within the requirements of the Construction Lien Act. Further, RVL Masonry Ltd. perfected the lien with its certificate of action on June 5th, 2013.
[14] There was no error of law by the trial judge in reaching this conclusion. He correctly stated the law. His conclusion turns entirely on findings of fact that were clearly open to him based on the evidence before him. He gave little or no weight to the photographs, preferring instead to rely on the evidence of witnesses whose testimony he found to be credible. There is no palpable or overriding error. His findings are completely reasonable. Therefore, his finding that the lien was properly perfected stands.
iii. Costs
[15] The amount of the lien claim was approximately $14,000. The trial judge awarded costs of $30,000. The owners rely on s. 86(2) of the Act, which states:
Where the least expensive course is not taken by the party, the costs allowed to the party shall not exceed what would have been incurred had the least expensive course been taken.
[16] It ill lies in the mouths of the owners to assert that this lien action should have been brought in the Small Claims Court.
[17] The owners themselves brought an action in the Superior Court claiming $50,000 in compensatory and special damages, $50,000 in general damages, and $100,000 in punitive and exemplary damages, for a total of $200,000. The issues in that action overlap the lien action issues, and were found by the trial judge to be devoid of merit. Due to the overlap between the two actions, they were ordered to be tried together. It follows that the RVL claim had to proceed in the Superior Court.
[18] Furthermore, in an effort to limit the costs of the litigation, counsel for RVL had requested prior to the first pre-trial in the litigation that the owners agree to transfer the litigation to the jurisdiction of the Small Claims Court. The owners refused. Counsel for RVL made a further request at the first pre-trial. Despite this request, and despite the urging of the pre-trial judge, the owners refused to transfer the matter to the Small Claims Court.
[19] A trial judge has a broad discretion with respect to costs. RVL had claimed costs of approximately $30,000 on a partial indemnity basis, or $47,564.23 on a substantial indemnity basis. RVL’s actual legal costs were $61,934.78. In its submissions on costs before the trial judge, RVL pointed to several examples of conduct by the owners that lengthened and unduly complicated the proceedings. RVL also pointed to several things it had done in an attempt to simplify matters and keep costs down, which the owners did not accept.
[20] The amount at issue in an action is only one factor to be taken into account in awarding costs. Although it is not typical to award costs that are more than double the amount of the claim, the litigation was necessitated by the actions taken by the owners, and RVL was entitled to be compensated accordingly.
[21] We find the trial judge’s costs award to be reasonable in all of these circumstances.
F. COSTS OF THE FRESH EVIDENCE MOTION AT APPEAL
[22] RVL has been wholly successful on both the motion to admit fresh evidence and the appeal. RVL seeks partial indemnity costs in the amount of $8,788.30 for the motion, and $17,019.28 for the appeal. Mr. Chijindu agrees that costs should follow the event and takes no position on quantum.
[23] In my view, the amounts claimed are reasonable and appropriate. The time had to be spent in order to respond to the issues raised by the appellants, regardless of the fact that the amount of the claim itself is just over $14,000.
[24] I note that Mr. Chijindu, who is a lawyer, has not retained outside counsel to represent him and his wife. RVL does not have that advantage and has been represented by counsel throughout, at a considerable expense.
G. CONCLUSION
[25] Accordingly, the appeal is dismissed with costs fixed at the amount claimed by RVL as partial indemnity costs, which I have rounded up to $26,000 for the appeal and motion, payable forthwith.
___________________________ Molloy J.
C. Horkins J.
Howard J.
Date of Reasons for Judgment: September 14, 2016
Date of Release: September 16, 2016
DIVISIONAL COURT FILE NO.: DC-14-00753-00 DATE: 20160914
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Molloy, C. Horkins, Howard JJ.
BETWEEN:
RVL Masonry Ltd.
Plaintiff/Respondent on Appeal
– and –
Christian Chijindu and Nkiruka Ochei
Defendants/Appellants
AND BETWEEN:
Christian Chijindu and Nkiruka Ochei
Plaintiffs/Appellants
-and-
Robert Van Londen
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: September 14, 2016
Date of Release: September 16, 2016