Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 8018/ONHWPA
CASE NAME: 8018 v. Tarion Warranty Corporation
An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 – to Disallow a Claim
Appellants -and- Tarion Warranty Corporation Respondent -and- Livingstone Development Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellants: Khalid Elgazzar, Counsel
For the Respondent: Ellie Choi, Counsel
For the Added Party: François Kabemba, Counsel
Heard in Ottawa: November 5, 6, 7, 2014, February 4 & 5 and March 12 & 24, 2015.
REASONS FOR DECISION AND ORDER
This is an appeal by the Appellants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated April 2, 2013, with respect to a claim for financial loss under a construction contract with Livingstone Development Inc. (“Livingstone” or “the Builder”), in which Tarion denied the Appellants’ claim for compensation.
Preliminary Matters
At the beginning of the hearing, Mr. Kabemba, Counsel for the Builder raised a preliminary issue concerning the Tribunal’s jurisdiction to determine compensation in this matter. He submitted a Default Judgment, dated November 12, 2013, issued by the Superior Court of Justice against Livingstone. Mr. Kabemba argued that the Default Judgment negates the Appellants’ appeal. He submitted that, as the amount of the Default Judgement is greater than the Appellants’ claim for compensation withTarion, the Default Judgment takes precedence. Accordingly, the Appellants’ appeal before the Tribunal should be dismissed.
Mr. Elgazzar, Counsel for the Appellants, argued that the Default Judgment has no bearing on the Appellants’ appeal before the Tribunal. The Appellants were not parties in the civil action. The action was initiated by three sub-trades. The Builder elected not to defend the claim and no evidence was heard by the Court. The Appellants do not accept that the amount of the judgment is a true value of the work completed by the Builder at the time the contract with the Appellants terminated.
Ms. Choi, Counsel for Tarion, argued that the Default Judgment was based on sworn affidavits from the sub-contractors involved in construction lien actions against the Builder. Tarion was recently advised of the judgment and although the information may assist in reducing the length of the hearing before the Tribunal, the three sub-trades who were parties to the action, are witnesses scheduled to testify during the Tribunal proceedings. Their evidence is of crucial importance in the matter before the Tribunal.
The Tribunal considered the parties’ submissions and the provisions of the Ontario New Home Warranties Plan Act (the “Act”) in determining the issue raised by Mr. Kabemba. The Act and its regulations set out in some detail the rights and duties of the three bodies involved in the construction, sale and warranty of new homes: vendors/builders, purchasers, and Tarion
The Tribunal is not persuaded by the submissions made by Mr. Kamemba. The existence of a default judgment in an action in which neither the Appellants nor Tarion were parties, does not displace the right of appeal to this Tribunal given to a homeowner under the Act, from a Decision Letter issued by Tarion. It is that Decision Letter of April 2, 2013, which is before the Tribunal and which, by virtue of the Act, gives the jurisdiction to this Tribunal, to adjudicate the matter.
FACTS
On August 20, 2012, the Appellants entered into a contract with Livingstone Development Inc, for the construction of a home on a property owned by them. Approximately two months later, construction of the home ceased and the contract between the Appellants and the Builder terminated. On October 23, 2012, the Appellants filed a claim with Tarion for financial loss compensation.
Tarion assessed the replacement value of the work and materials provided by Livingstone Development Inc. as $210,392.25. When construction ceased, the Appellants’ had paid $136,760.00 to the Builder. The Appellants’ allege there were defects in the construction and they incurred additional cost to rectify the defects. They submit that Tarion’s assessment does not take into account the cost for rectification of the defects.
Tarion denied the Appellants’ claim on the grounds that the Appellants did not demonstrate that they paid more than the value of work and materials they had received from the Builder at the time construction ceased. Furthermore, the Appellants were not entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty as the Builder failed to substantially perform the contract. On April 10, 2013, the Appellants appealed Tarion’s decision.
THE EVIDENCE
The Tribunal heard from twelve witnesses. To support their claim, the Appellants relied on the testimony of an expert witness and two companies who repaired the alleged defects Tarion called two witnesses, the Warranty Services analyst and the Warranty Field Services representative. The Added Party relied on evidence of three sub-trades who contracted with Livingstone Development Inc. to do the excavation, foundation and framing of the house.
The Appellants in this case are spouses and shall be referred to as BM and SM in this decision. Michael Akinniyi (MA) is the general manager and project manager of Livingstone.
The main focus of the evidence is on events that took place between the Appellants, the Builder and the sub-trades from February to October, 2012. The Appellants and the Builder diverge greatly in their accounts of the events that took place when they first met to talk about a contract estimate and when the contractual relationship ended. There are various interpretations of verbal agreements, errors in invoices, missing paperwork to substantiate changes and additional costs and a substantial number of factual disputes arising from documents, where several are undated and unsigned.
BM is employed with the government and is a manager of information systems. SM is a travel agent. MA began working as a builder shortly after Livingstone Development Inc. was incorporated, some time in 2011. He had several years of employment in the construction industry prior to establishing Livingstone. The Appellants’ house was his first contract home project as a builder.
The Appellants first met MA in early 2012 through BM’s sister and brother in law, He was highly recommended as a builder. MA and his wife are good friends of BM’s sister and brother-in-law. The brother-in-law is a shareholder in Livingstone Development Inc. The sister is the guarantor for Livingstone’s guarantee and indemnity obligations with Tarion.
In February 2012, the Appellants and MA met to discuss the construction of a custom home on property owned by the Appellants. The property was located in a semi-rural subdivision. There is no common ground on who was at the meeting, what discussions took place or what documents were exchanged.
MA testified that he was given a memory stick which contained plans to construct a 4200 sq. ft. home. He used these plans to get estimates from sub-trades and prepare his first quotation. BM testified no plans were provided to MA at the meeting as the plans were only produced a few months later, in April. SM testified they provided MA with photographs of design homes printed off the Internet. These were ideas of what type of home they envisioned.
An unsigned and undated document (Exhibit 4, tab 8) is the first quote MA provided to the Appellants for $784,000.00. The Appellants found the estimate too high. After discussions on how to reduce the costs, the Appellants elected to get the architectural plans and building permits on their own.
MA testified the Appellants wanted a “dream palace” and were only prepared to pay $450,000.00. After several months of strained discussions, MA stated that, as a favour to BM’s sister and brother-in-law, he agreed to lower the price of construction.
On August 20, 2012, the parties signed a written contract for $557,000.00 (Exhibit 3, tab 4). The contract contains a project cost list which described various items in construction, but none of the items have a breakdown of specific costs.
The contract includes a payment schedule and a clause that states:
“Additional permits, survey, inspections, site improvements, increase in cost for construction and finishing is all included in the price with no additional charges to the buyer.”
In his evidence, MA stated that BM drafted the contract. He insisted that the above clause was not in the contract that he signed on August 20, 2012. Although he alleged there was another version of the contract, he provided no evidence to substantiate his claim. He further alleged that BM edited the contract at the time the amount was amended.
This assertion was denied by BM. He provided an email document sent to him from MA’s email address dated August 19, 2012, that states;
“please find a copy of draft contract that we sign with our clients, please review and call me.”
MA denied sending this email. He cannot account for its origin.
The payment schedule had nine phases of work. The schedule provided for payment based on a description of work taking place at various stages of construction. As construction ceased in phase 3, the focus is on the first three phases. Phase 1 is $55,700.00 for completed excavation and foundation, phase 2 is $75,260.00 for completed septic and well, rough plumbing and electrical and phase 3 is $100,354.00 for completed framing and roofing, exterior windows and doors and interior insulation.
The Builder testified that construction began immediately after the contract was signed. The Appellants wanted to reside in the new house by Christmastime. Within a few days, various disputes arose over additional costs for the surveyor and the excavation. An engineering report identified the need for more gravel and sand to adequately establish the base for footings and the installation of a septic system. There is contradictory evidence as to whether or not an adequate soil test was performed prior to the start of construction. The Appellants agreed to pay $5,500.00 for the additional excavation cost. On September 10, 2012, the contract was amended to reflect the extras for septic sand fill, additional photocopies and permits and the value was adjusted to $562,800.00.
Although the payment schedule stated money was to be paid on completion of work in each phase, the Builder testified that he had a verbal agreement with the Appellants to pay the money at the beginning of the stages of construction. By September 10, the Appellants had paid $136,460.00 to the Builder. MA testified he needed additional funds to start framing and therefore asked the Appellants for the phase 3 payment.
BM’s version of events was simply that MA needed more money as he was pursuing other construction investments. BM refused to pay additional money, as the construction phases 1 & 2 were incomplete. He stated MA threatened to register a lien against the property.
MA testified that BM wanted to build a palatial house for much less money and interfered with the construction work. He was unreasonable and suggested sub-standard materials to cut costs. MA needed more funds for lumber, windows and doors to move forward into phase 3 .The disagreements continued and various simmering issues boiled over into full-fledged disputes.
MA testified that there were serious disagreements with the Appellants on the cost of windows and doors. He required their approval and additional funds for a deposit. On September 23, 2012, in an email to BM, he provided an estimate for windows and stated:
”pls [sic} read carefully as I have to make a decision by Monday”.
MA stated there was some urgency to the matter as he wanted to provide the framer with the manufacturer’s specifications of the windows and doors. BM refused to approve the cost and delayed making a decision, knowing that the framer was moving ahead with the work.
A few weeks later, BM stated he received a telephone call from the one of the Builder’s sub-trades who informed him that he had not been paid by the Builder since the start of construction. MA was not returning phone calls. He stated two other sub-trades were facing the same problem. All three sub-trades were considering placing liens on the property.
BM stated that within a few days he contacted MA to negotiate the return of the money paid to date. He planned to directly pay the sub-trades and avoid legal action against his property. Although MA agreed in an email dated October 16, 2012, to return some money through his lawyer, no money was sent. MA testified that on the advice of his lawyer he did not return any money to the Appellants.
On October 16, 2012, the Appellants contacted their lawyer who advised the Builder’s lawyer that the Appellants had terminated their contract with Livingstone Development Inc.
There are contradictory statements as to when the trades stopped working and construction ceased. The Appellants testified that, at the end of September or early October, 2012, construction stopped and neither the sub-trades, nor MA were on site The documentary evidence suggests that work on the site stopped sometime between October 11 and 16, 2012.
In cross examination, BM was asked why his email address used during the project infers he is incorporated, when he is not. BM responded that he established this address so that suppliers would seriously consider his requests for goods and services. He did not view this as inappropriate and misleading. He was further asked about invoices for costs incurred by the Builder at the time the construction contract ended. The invoices are:
- land survey ($3,390.00),
- soil inspection report during excavation($932.25),
- Tarion enrolment costs ($1,209.10),
- insurance binder ($2757.00),
- well ($3,918.27)
- lumber delivered between September 25 and October 11, 2012 ($19,359.19)
- metal beams for the basement ($2,712.00).
BM agreed with the costs of the invoices except those for the lumber and metal beams and posts. He insisted there was no salvage of wood from the walls. He hesitantly agreed there was some lumber was left on site when construction ceased. He stated three metal posts were missing and the amount on the invoice should be adjusted from $2,712.00 to $2,260.00.
In summary, BM agreed that a total amount of $14,466.62 in invoices was paid by the Builder. When asked about the alleged defects in work, and why he did not take his own photographs to document the status of the work, he responded that the photographs taken by Tarion on October 29, 2012, were sufficiently complete.
In cross examination, BM was also asked when he discussed with MA possible resolutions to the disputes and when he contacted his lawyer with the intent to terminate the contract. BM responded in a somewhat inconclusive manner to several questions concerning timelines and claimed he could not remember the exact dates or times. BM reiterated that as the sub-trades had not been paid and MA was not responding to their calls, he concluded that MA had walked away from further construction of the house.
SM testified that due to their total dissatisfaction with the Builder and their dispute they contacted the media and the Better Business Bureau to express their concerns. They felt compelled to go public and expose the Builder.
The Builder testified he was mortified with their allegations which were grossly mischaracterized. He further testified that BM always intended to build the house on his own; however, he wanted the Tarion warranty and required a registered builder. It is not a coincidence that two days after the Appellants terminated the contract through their lawyer BM signed an estimate for the windows and doors (Exhibit 18) and in a very short time after he was hiring his own trades to continue construction.
In his testimony, the Builder confirmed he received $136,460.00 from the Appellants. He submitted his own invoice (Exhibit 16, tab 1) with detail of work performed by sub-trades and suppliers. The invoice is undated and unsigned and contains two items unrelated to the Appellants’ project. In subtracting these items, MA concluded his total cost when the contract terminated, was $239,818.92, which includes a 15% builder’s overhead and profit and H.S.T. He contends that he is facing a loss of $103,358.92.
MA testified that when the contract terminated, he called the sub-trades and advised them he was not in a position to pay their invoices and obtained their agreement to wait a few months hoping the dispute with the Appellants would be resolved. No resolution occurred and various legal actions ensued. MA stated that he will honour the invoices and work out a payment schedule with the sub-trades once the legal proceedings are completed.
In cross examination by Ms. Choi, MA emphasized that throughout the negotiations of the contract with the Appellants he was very conciliatory because of his relationship with BM’s sister and brother-in-law. The discussions were based on trust, fairness and truth. They had verbally agreed to a 15% builder mark up for overhead and profit.
He further stated that he was on site every day and worked closely with the sub-trades. He was fully satisfied with their work and found no significant defective work. He added that the Appellants were fully aware of the work on the project, as BM attended the site almost daily and SM dropped by the site two or three times a week on her way to her children’s daycare.
In cross examination by Mr. Elgazzar, MA could not explain as to why the builder’s mark up for overhead and profit was not written into the contract. He did not provide an answer and stated that the Appellants had verbally agreed to the arrangement. He maintained that the disputes were over the cost of construction and not about the standard of work by the sub-trades. The Appellants were unwilling to pay a fair price for the type of home they had planned. MA stated BM was unreasonable and manipulative. He took advantage of MA’s friendship with his sister and brother-in-law and repeatedly pushed to get a better house for less money. He alluded that BM’s use of an email address inferring he was an incorporated body was a “back door” approach to entice better deals.
In further cross examination, MA was asked to account for the $136,760.00 paid to him by the Appellants, given that the sub-trades had not been paid. MA acknowledged he paid a total of $44,575.81 in invoices related to the project. He has a balance of $92,184.19 which he is holding in reserve until legal proceedings are completed. As a result of the issues with Appellants, he has been unable to work for over two years and his financial future is precarious. He is also certain to lose money on this project. Although he maintained the Appellants ended the agreement, he acknowledged that he had asked himself whether he should continue the project in light of the serious problems and disputes with the Appellants. He kept hoping to find a common ground.
In further cross examination, when asked as to why there were so many verbal agreements, MA responded that BM preferred it that way. Although MA suggested written documentation, he did not insist on this practice with the Appellants. He claimed he was rushed for time and operated on being truthful with the Appellants whom he trusted.
Contracts with the Appellants for work after termination of the contract
In November, 2012, BM testified he took a leave of absence without pay from his employment and assumed the role of general contractor. He wanted to finish the construction of the house before the arrival of winter. With money he borrowed from various sources, he hired his own trades and continued the construction of the home. BM provided his assessment of the work and material supplied by the Builder (Exhibit 7), to substantiate the claim that some work performed by the Builder’s sub-trades was either defective and/or incomplete. In preparing his assessment, he considered the cost to repair, rebuild and complete work described in phases 1, 2 and 3 of the contract. He concluded that the value of work and materials supplied by the Builder was $91,130.25. The amount included taxes and 10% builder overhead and profit.
Two trade persons hired by BM provided the following evidence.
Robert Renaud of Bob Renaud Crepin Rental Ltd. testified that he has been in the excavation business since 1980. In November, 2012 BM hired him to perform excavation type work. He added backfill around the foundation, clean fill in some areas around the house construction and performed grading and trenching on the property.
In cross examination by Ms. Choi, Mr. Renaud testified he provided a service contract to BM dated November 28, 2012. It does not contain an estimate of hours to perform the work or an estimated total cost. He took instructions from BM and was not provided any documentation, drawings plans or invoices for previous work done on the property. He stated “some things were not done”. BM wanted the work completed before the winter. Mr. Renaud was asked to explain a letter (Exhibit 3, Tab 50) dated March 14, 2014. The letter is from his company and refers to the following:
“missing and incompleted (sic) items, November 7, 2012” at the project site location
“labour costs $15,441 and material cost $13,176.08”.
Mr. Renaud stated he did not write this letter as he does not have a computer. BM wrote the letter to document the work that needed to be completed. Mr. Renaud agreed that he personally did not work on the septic system.
Patrice Dumais of Évolutif Construction Inc. testified he worked on the Appellants’ house in November, 2012. He stated that in November, 2012, BM hired Évolutif Construction Inc. to finish the framing work of the house. Mr. Dumais works as a framer with the company and worked at the site. He testified he has 15 years of experienced in framing.
A service contract allegedly prepared by Évolutif Construction Inc was entered into evidence. (Exhibit 3 tab 39). The contract is neither signed by someone at Évolutif Construction Inc., nor the Appellants. Part of the contract was to finish the first floor, garage and rear porch and to verify and repair mistakes at a cost of $8000.00 plus H.S.T.
On November 8, 2012, the owner of Évolutif inspected the Appellant’s house under construction. He identified defective areas and allegedly prepared a “defect report” (Exhibit 3, tab 48), which listed structural defects and incomplete items. The report is not signed by the owner of Évolutif Construction Inc. nor did he appear as a witness at the hearing.
Mr. Dumais testified he is not the author of the “defect report”. He stated he was instructed by the owner of Évolutif to follow the scope of work established in the “defect report”. He fixed some rough window openings, but not all. Based on the measurements he was provided by BM, the rough window openings did not match. It was clear that much of the work had started; however in his opinion, some work was done incorrectly and much of it was incomplete. Some posts in the basement were missing and he observed some wood on the floors had darkened, leaving him to believe there may have been water damage.
In cross examination, Mr. Dumais acknowledged he was uncertain about the condition of the wood as he did not repair the floor, nor did he remove any of the wood. He agreed that the sheathing may have required replacement; however it may not have been absolutely necessary to do so.
Evidence of Expert Witness
Phillip Bottriell was called as an expert witness by the Appellants to provide an opinion on the value of work provided by the Builder at the time construction ceased. He testified in November, 2014 and as a result of additional documentary evidence provided during the testimony of the Builder’s sub-trade responsible for the excavation, he was recalled in March 2015.
At the continuation of the hearing on February 4, 2015, Mr. Kabemba requested the Tribunal adjourn the proceedings as the Added Party wished to obtain their own expert witness to challenge the Appellants’ expert witness. Mr. Elgazzar and Ms. Choi both objected to the request for an adjournment. The Tribunal noted that Mr. Bottriell’s first report is dated July 24, 2014, more than three months before the start of the hearing. The additional evidence that triggered Mr. Bottriell’s supplemental report was heard in November, 2014.The Tribunal denied the request on the basis that the Added Party had sufficient time to obtain their own expert witness, should they wished to do so.
Mr. Bottriell was presented as a certified professional engineer and a registered home inspector. He has been a home inspector since 1987 and a licenced professional engineer in Ontario since 1985. He has provided cost analyses and reported on deficiencies for new construction and renovations. He has frequently testified as an expert witness on partially constructed homes.
Mr. Kabemba submitted that Mr. Bottriell be denied qualification as an expert on the grounds that he is not a builder and he lacks the specific education to establish valuations on building construction and that his evidence should be given little or no weight. Ms. Choi raised no objections on the qualifications of Mr. Bottriell as an expert witness. Mr. Elgazzar argued that Mr. Bottriell’s testimony was relevant to establish the value of the work provided by the Builder when the contract ended. On the issue of whether Mr. Bottriell should be qualified as an expert for the purposes of this hearing, the Tribunal is satisfied that he is qualified to provide an opinion on construction related projects.
Mr. Bottriell testified that he did not visit the project site. The house was finished when the Appellants retained his services in 2014. His opinion is based on a review of documents provided to him by the Appellants and additional documents provided in evidence during the Tribunal proceedings. Determining the value of work performed was difficult because there was no breakdown of the cost of each item listed. Mr. Bottriell indicated he focused on the lump sum pricing of the contract ($557,000) and used the percentages applicable to phases one (10%), phase two (10%) and phase three (15%) of the payment schedule to make his calculations. He stated that the value of work is based on the value of the contract. He was not asked to provide a fair market value of the home at the time the contract terminated between the parties.
Based on his experience and using market pricing, he found the costs of excavation and of the septic system excessive. He conceded that depending on soil conditions, the costs could vary. He was not provided with any soil testing analysis. Mr. Bottriell expressed concern that delivery tickets for sand, gravel and other material associated with the work were not signed by either the Builder or some other person at the project site. This is a standard practice in the construction industry as it is easy for the driver to deliver material to any construction site. Without a validated ticket, a builder cannot verify invoices from the supplier nor account for the extra cost to the home owner. He added that there are two parts to the delivery tickets; a trucker copy and a customer copy. The delivery tickets disclosed by Luciano Excavation are trucker copies. Mr. Bottriell stated the industry practice is to provide the general contractor or site supervisor with a “customer copy.” Although the tickets validated some of extra cost of the excavation, the tickets for additional sand/gravel and stone dust for the septic system were not available.
Regarding the foundation work, he found that the photographs provided a limited picture of the work. He stated that the foundation was incomplete and therefore the invoice of $55,000.00 provided by the Builder’s sub-trade did not reflect a true value. He used the information provided to him by the Appellants and concluded that the amount of excavation work to complete the work was in excess of $20,000.00. On the framing work, given the comments of the framer in an email to the Appellants concerning issues related to window and door openings, it is fair to speculate that a new framer would have removed the existing walls and reframe if necessary. In his experience, there is little value to a new framer to reuse existing wood and apply fixes in required areas. It requires too much time and it is easier to start afresh.
Mr. Bottriell concluded by stating that it is a standard practice for builders to add 15% mark up for overhead and profit on top of the invoices rendered by sub-trades or suppliers. Based on the contract schedule of work and his analysis of documents, he assessed the total value of the work completed at the project site as $106,025.00 which includes H.S.T. He accepted that this amount could vary slightly as some of the estimates/invoices included overhead and profit and H.S.T, while others did not.
In cross examination by Ms. Choi, Mr. Bottriell acknowledged that he did not review plans for final grading or site drawings. He agreed that he conducted his analysis approximately two years after the contract terminated; however, he disagreed that the value of work would be different. He further agreed that his analysis was based on information provided by the Appellants and Tarion’s Book of Documents which had been prepared in 2013 for the proceedings before this Tribunal. He was never provided any documentation to review from the Added Party. When asked as to whether or not he asked the Appellants for copies of delivery tickets, Mr. Bottriell stated he assumed the Appellants provided him with what documents they had in their possession.
Mr. Bottriell stated that in his review of documents, there is no evidence of paperwork in this case to substantiate extra costs to the contract or to confirm verbal agreements for additional work. He added that signed documentation for extra costs in construction contracts is vitally important for both the builder and the home owner. In the absence of documentation, it was difficult to justify the extra costs identified for the excavation and septic system.
In further cross examination by Mr. Kabemba, Mr. Bottriell conceded that if extra work was recommended in a soil engineer assessment, it may be justified. Nevertheless, the Builder may have options on how to handle the recommendation. In such instances, discussions with the homeowner are paramount and documentation of the agreed plan of action is essential. In this case, documentation was not apparent. Notwithstanding this fact, he stated that the Builder may not have fully known the soil conditions, and evidently he could not forego moving on with the work.
Evidence from the Builder’s sub-trades
Luciano Annibilini of Luciano Excavation began his testimony on November 7, 2014. In the early stages of his testimony, the Tribunal learned from the witness that he had in his possession documents, in the form of “delivery tickets”. These documents provided evidence of the extra work he performed for the Builder. It was unclear as to why these documents were not disclosed by the Added Party prior to the start of the hearing and in accordance with the Tribunal’s Rules of Practice. Mr. Kabemba stated he had been unsuccessful in his attempt to obtain the documents from the witness, who was reluctant to testify. The witness stated he had not been instructed by Mr. Kabemba to produce the documents prior to the hearing.
Mr. Annibilini testified that he operates his own excavation company through Claymark Corporation. He has been in the excavation business since 1995. He was hired by MA to excavate for the footings and install a septic system at the Appellants’ project site.
Mr. Annibilini had worked for MA on one previous occasion in 2009. He first met the Appellants on August 20, 2012, when the parties were signing the contract. Although BM testified that MA introduced Mr. Annibilini as his partner during the meeting, this assertion was denied by him.
Mr. Annibilini began the excavation two days after the signing of the contract. He immediately found poor ground conditions. A consulting engineering company inspected the soil and recommended additional excavation and replacement stone to establish a proper base for the foundation. (Exhibit 4, Tab 13) At an on site meeting with the engineering company, He got verbal approval from MA and BM to go ahead with the additional work. The verbal approval was not documented in writing between the Builder and the Appellants.
Mr. Annibilini also encountered poor soil conditions in excavating for the septic system. A second consulting engineering firm recommended additional sand to raise the septic system base. BM gave him verbal approval for the additional cost of sand. Although Mr. Annibilini maintained it was required for the installation and subsequent inspection, neither he nor MA were able to provide the report from the engineering company to substantiate the need for additional work and sand. He stated that 90% of the septic system work was complete when the municipal inspection issued their approval. He stated that the backfill was on site to complete the work. He did acknowledge the backfill was not completed.
Mr. Annibilini stopped working on the project on September 13, 2012. He had been working on site for three weeks and had not been paid any money by MA. He had observed disputes between the Builder and BM and he worried about the relationship and the future of the contract. He stated that the 10% of unfinished work was taken into account in his revised invoices, which include excavation for $39,763.12 and the septic system for $49,382.13.
In cross examination, Mr. Annibilini was asked to explain the construction industry practice of tickets for the delivery of materials to project sites. He explained that it is generally the practice for a builder/ general contractor or other person at the site to sign off tickets upon arrival. He was unable to explain why the delivery tickets on this project were not signed off. He recalled MA stated he did not have sufficient manpower to have someone on site to verify deliveries. Mr. Annibilini explained that he routinely checks tickets against consolidated invoices from the supplier prior to payment. However, he could not explain the discrepancies in tickets associated with this project, nor could he account for the missing tickets for the septic sand.
In cross examination by Mr. Elgazzar, Mr. Annibilini could not account for the incomplete work around the septic system as shown in the photographs taken by Peter Shahen, Tarion’s Warranty Field Services representative on October 29, 2012. He recalled he had started to backfill the septic area. He stated the Builder operated on verbal agreements, a practice he was uncomfortable with. When he asked the Builder to document extra costs in writing and obtain signed approvals, he was reassured he could trust him and he would get paid. At no time did he witness a change order for additional costs.
In further cross examination, Mr. Annibilini acknowledged that he has received $10,000.00 from the Builder, with promises of more money once the legal proceedings are completed. He expressed frustration with the entire events around this case.
John Bacic of Bacic Forming Concrete Ltd. testified he is owner and director of the company. He has been in the business of foundation work for 29 years. He was hired by MA to pour footings and walls and perform related work in late August, 2012. He completed 70% of the work within six days. He recalled seeing BM on site several times. He cannot recall the exact date when the work stopped. However, he stated that whenever he spoke with BM or MA, “something was not right”.
Mr.Bacic stated he provided MA with a very fair and competitive quote for the foundation work. He stands by the value of his work. His final invoice to MA for $43,505.00 is reasonable and reflects the 70% of work completed when he decided to stop work due to the uncertainty of ever being paid.
Roberto Zacconi of Zacconi Contracting Inc. testified he is owner of his company that specializes in residential framing. He started framing houses 13 years ago and has operated his own business for six years.
MA approached him to do the framing at the Appellants’ house about one month before he started the work. This was his first framing contract with Livingstone. At the start of the framing, there was a problem with the project. The excavation around the foundation was not backfilled and railings were not installed to provide adequate safety of the work area.
Mr. Zacconi took instructions from MA. He experienced difficulties with framing as some of the material was missing and the manufacturer’s rough stud opening (RSO) measurements for the windows and doors were unavailable. He used the drawings he had been provided, modified some of the work and was confident based on his framing experience, that later adjustments, if required, would be possible. He testified that both MA and BM were aware of the issues and did not instruct him to stop framing.
Mr. Zacconi stated he found it strange that BM was frequently at the job site while he had MA as a general contractor. He sensed that the relationship between MA and BM was not good. He described the discussions between them as not “healthy”.
On October 11, 2012, he sent an email to BM to document his observations at the site (Exhibit 3, tab 47). He stated: “short lumber numerous occasions/incomplete delivers (sic), second floor joist not on site, backfill of garage not complete, front porch not done and not normal building practices.”
In cross examination, Mr. Zacconi was asked to explain what he meant by “not normal building practices”. He stated that the construction was in its early stages and he sensed there were many disagreements and a lack of trust between MA and BM. He described their relationship as toxic. Something was wrong and work was not getting done. He speculated that money was an issue as he and other trades had not been paid. He wondered why BM was frequently on site, keeping a close eye on the work. He wondered if he planned to “break the contract”.
Mr. Zacconi stated that when he reached 25% of the work and he had not received any money from MA, he began to worry about the future of the contract. Other sub-trades, Mr. Annibilini and Mr. Bacic confirmed they also had not been paid. Mr. Zacconi stated he was willing to continue working; however, as he had not been paid and witnessed a negative relationship between MA and BM, he decided on his own to stop working at the site. He estimated he last worked on site on or about October 11, 2012,
Also in cross examination, Mr. Zacconi dismissed the suggestion that he provided an estimate in May, 2012, without looking at drawings. He referred to his framing contract which was based on plans dated April 29, 2012. He acknowledged that the plans of April 29, 2012, provided to him by MA were small; nevertheless they were sufficient to provide a quote for the framing and for the lumber company to produce roof joists.
On October 10, 2011, Mr. Zacconi issued an invoice to MA for $14,125.00, which represents 25% of the first floor completion. He testified that his invoice is fair and adequately represents the work completed as of that date. He maintained the work was well done. He agreed that some windows and doors may have been wrongly framed, however they could be fixed. He disagreed that there was a need to tear down entire walls and framing as stated by BM. He further disagreed with the suggestion that, if wood was exposed to outside elements for a month or so, it would have to be replaced.
Tarion’s Evidence
Tarion’s evidence consisted of a Book of Documents (Exhibit 4) and the testimony of Marianne MacLeod, Tarion Warranty Services Analyst and Peter Shahen, Tarion Warranty Field Services Representative.
Marianne MacLeod has been employed as a Warranty Services Analyst by Tarion for nine years. Before joining Tarion, she worked as a customer services representative for a new home developer and builder. Ms. MacLeod’s duties include handling inquiries from owners of land who have a falling out with builders before the contracts are substantially performed. Her role is to process claims for financial loss. She handles approximately 15 financial loss claims per year.
Ms. MacLeod testified that on October 12, 2012, she was contacted by BM who was seeking information to file a claim. She recalled BM was upset and she had a lengthy conversation with him to explain the legislated warranty eligibility and the claim process. She provided the Appellants with the required complaint form to submit for a financial loss on their home.
On October 23, 2012, Tarion received the form, which was reviewed one week later, by Ms. MacLeod, when she returned from holidays. At the same time, there was a sense of urgency on the file as the plight of the Appellants had reached the media’s attention. On October 29, 2012, Peter Shahen conducted an inspection and took photographs of the home.
Ms. MacLeod stated that, soon after the inspection, she requested additional information from both the Appellants and the Builder to fully assess the claim. The Appellants had two issues in their claim: 1) they paid more money than the value and material in place at the time the contract ceased and 2) some of the work done was defective. On the issue of defective work, she received one document from the Appellants, the “defect report” from Évolutif Construction Inc. She found the report incomplete as there was no scope of costs linked to list of defects. BM undertook to provide her with another report on the foundation work in the near future. She waited for this information before requesting a second inspection to assess the alleged defects.
On November 15, 2012, Ms. Macleod sent an email to the Appellants in response to some of their inquiries and to clarify some points. She recommended that they take steps to protect the work that was in place. Ms. MacLeod stated she was unaware that the Appellants were in the process of continuing the construction of the home. She stated that at no time during her conversations with either of the Appellants, did they mention construction was ongoing.
In January, 2013, upon receiving a “foundation report” from the Appellants, she requested a second inspection of the home to evaluate the alleged defects.
Mr. Shahen attended the project site on January 21, 2013 and found that, since the first inspection on October 29, 2012, a great deal of work had been completed. Due to the advanced state of construction, he was unable to assess the alleged defects. Ms. MacLeod concluded that the claim for defects or faulty work was not justified as the areas involved were already completed or covered and no evaluation of the alleged defective work was possible.
Ms. MacLeod stated the Appellants’ claim was unique and not straightforward. She observed that the total contract price seemed too low for the size of the home. This was a large home and included many upgrades. Although she had acquired a great deal of information and documents from the Builder and the Appellants, the sub-trades who worked on the house were not completely forthcoming with other relevant documents.
In consultation with her manager at Tarion, it was determined that the most appropriate tool to use to establish value in assessing the Appellants’ financial loss claim was Xactimate, a specialized cost estimating software tool, designed to provide accurate, detailed estimates for construction costs. The Xactimate report indicated the replacement value of the work and materials provided by the Builder was $210,392.25.
Ms. Choi advised the Tribunal that, when Tarion’s Decision Letter was issued on April 2, 2013, the Xactimate program was the best tool available to establish the value of work and materials supplied by the Builder. However, as a result of proceedings before the Tribunal, Tarion has the benefit of evidence from witnesses who performed work and supplied materials on the Appellants’ house. Tarion is now relying on this evidence. She stated that Tarion’s initial decision that the value of the work and materials provided by the Builder when the contracted ended exceeds the funds paid by the Appellants remains the same.
In cross examination, Ms MacLeod was asked as to why she did not take immediate action to investigate the alleged defects reported by the Appellants. She replied that BM never reported to her that he was carrying on with the construction of the home. BM appeared more concerned about his ability to find money to finish the home. She was very surprised when Mr. Shahen attended the project site in January 21, 2013 and reported a house fully enclosed and almost completed.
Ms. MacLeod conceded that she took no steps to advise the Appellants to hold off on construction and wait for another Tarion inspection. Nevertheless, she stated that, as the Appellant was actively hiring his own trades to continue construction, he ought to have realized that Tarion needed to inspect and assess the alleged defects.
In further cross examination, Ms. MacLeod confirmed the Builder was registered with Tarion and her responsibility was to process the Appellants’ claim. She reiterated that, regardless of the status of a builder’s registration or the enrolment of the home, Tarion ensures that the warranty a home owner is entitled to, is maintained.
Peter Shahen has been employed as a Warranty Services Representative by Tarion for 10 years. For a period of 20 years, before joining Tarion, he held various positions as an inspector and Building Code consultant in the construction industry. His duties include conducting inspections to assess defects and contractual issues between builders and home owners in relation to Tarion’s warranty program. He conducts approximately 200 inspections a year, of which 10% are custom home contracts.
Peter Shahen conducted two inspections of the Appellants’ project site. On the first inspection of October 29, 2012, he was surprised to see BM at the site. He found him anxious to engage in conversation over the disputes he had experienced with the Builder. Mr. Shahen took numerous photographs of the existing work which included footings, foundation, first floor framing, partial septic installation, drilled well and considerable lumber left on the site. He described the home as not a “typical home”, in that it was not a common sub-division tract built home, but a very large home on an estate sized lot.
In reviewing the payment schedule phases of construction, Mr. Shahen reported the following observations on his first inspection:
- Phase 1 - excavation and foundation much completed except some incomplete damp proofing
- Phase 2 - septic system and well started but incomplete; rough plumbing and electrical not started
- Phase 3 - framing was started with rough openings for exterior doors and windows; no windows and doors on site, no interior insulation.
- Phase 4 – elevator shaft and basement stair opening part of framing; no stucco or drywall; no evidence of hydro or gas service line installation.
- Phase 5 – nothing was started.
Mr. Shahen stated he saw nothing on the site of real concern and he has no recall that BM pointed out any defects in the construction, nor did he personally see any defects. He further denied the assertion made by BM in his testimony that he had “expressed shock at what was left behind”.
When Mr. Shahen conducted a second inspection on January 21, 2013, to assess the alleged defects, he saw an entirely different picture of the home. Due to the advanced state of construction, he was unable to distinguish between the old and new construction. Framing for the first and second floors was completed; the roof, the exterior building wrap and all of the windows and doors were installed. As a result, it was impossible to make any determination on the alleged defects claimed by the Appellants.
Mr. Shahen stated he was not responsible for the Xactimate calculation provided by Tarion. He worked with Doug Lappan, a Warranty Services Representative who specializes in the use of the Xactimate software. He stated the Xactimate software has been used by Tarion for several years and is used approximately ten times a month to settle claims.
In cross examination by Mr. Elgazzar, Mr. Shahen stated he was unable to ascertain if the window and door framing had been modified. He added that the drawings entered in evidence (Exhibit 4, tab 18) contain sufficient detail to allow the framing of walls, windows and doors. Variances in the framing of windows and doors are not always considered as defects. He conceded that the openings would be rough sized only. In his experience, a manufacturer’s measurements are not required to do the initial framing.
In cross examination by Mr. Kabemba, Mr. Shahen was asked if the construction phases outlined in the payment schedule interconnect. He agreed that parts of construction often overlap as one construction phase may be started prior to the completion of another one. It often depends on the nature of the work. For example, to install the rough electrical work, the framing must be in place. As the details in the payment schedule are very vague, he was unable to comment as to how the work evolved in this case.
Closing Submissions
The Appellants’ Counsel
Mr. Elgazzar submitted that the Builder ended the contract by abandoning the project and the Appellants are entitled to payment out of the guarantee fund. The Builder’s evidence was contradictory, his business practices were marginal and some of the financial accounting is inexplicable. As some of the evidence is so diametrically opposed, he suggested that the Builder has not been truthful in his testimony before the Tribunal; he has made outlandish allegations in an attempt to impugn the Appellants.
Mr. Elgazzar submitted that the Builder and his sub-trades inflated their estimates for work on the project. He added that the Builder’s value of the work and materials is an unreasonable amount, given what was left behind. He submitted that Mr. Bottriell’s report is balanced and fair and should be given weight by the Tribunal in assessing the Appellants’ entitlement.
Mr. Elgazzar submitted that the Act is consumer protection legislation. It should be given a broad and liberal interpretation consistent with its objectives. He argued that in determining the value, the Tribunal must take into account the defects and the circumstances that left a partially completed home open to the elements. The Appellants ought to be able to recover some of the remedial work due to the Builder’s abandonment of the project.
The Respondent’s Counsel
Ms. Choi submitted that Tarion is a consumer protection agency and the mandate of the financial loss warranties is to provide compensation for home owners who received less value than what they paid. To that end, Tarion’s role is to conduct a fair market value assessment of the work and materials supplied by the Builder.
Ms. Choi submitted that the Appellants are intelligent, articulate and well informed individuals. The Builder was just starting his business and was not an experienced and sophisticated new home builder. From the evidence presented at the hearing, it is clear that the contract was negotiated and entered into between two equal parties.
Ms. Choi submitted the testimony of BM lacked credibility and there was contradictory evidence about the work and materials supplied for the project. Although he appeared to have a very good memory about many things, there was a serious question about the accuracy of his memory and testimony.
Ms. Choi argued that Mr. Bottriell’s opinion is not reliable in the determination of the value of work and materials supplied by the Builder. She identified the following issues with Mr. Bottriell’s evidence:
- He never visited the site and relied solely on information supplied by the Appellants and their Counsel in forming his opinion. There was no discussion with the Builder or any sub-trades about the work and material supplied on site.
- His opinion focused on the value of the work based on the contract and the cost to complete. The cost to complete is neither relevant nor helpful to the case before the Tribunal. Further, the Appellants presented no evidence to support the position that the house they built was identical to what was contemplated in the contract agreement with the Builder.
- As his opinion is based on the contract and the payment schedule, it cannot be relied upon to assess the value of the actual work and materials supplied by the Builder. This was a lump sum contract and the payment schedule was a rough estimate of the cost of work at various stages.
Ms Choi argued that there was reliable evidence from the sub-trades who performed the work and provided supplies at the Appellants’ home. It is an accepted fact that the Appellants paid the sum of $136,760.00 to the Builder. The Builder’s failure to pay his sub-trades does not impact the value of the work and material in place on the Appellants’ property at the time the contract was terminated.
Although difficult to make an accurate assessment of the precise value of all the work and material supplied by the Builder, the evidence shows that the value of work and materials supplied by the Builder on this project exceeds the amount paid by the Appellants to the Builder. Accordingly, she submitted that the Appellants have failed to prove their entitlement for payment out of the guarantee fund
The Builder’s Counsel
Mr. Kabemba submitted that the Builder naively entered into a contract with the Appellants at the recommendation of BM’s sister and brother-in-law. He argued that the Appellants planned to build the home themselves; however, they needed a registered builder for the Tarion Warranty Program. Appellant BM was a sophisticated and educated individual who knew more about the construction industry than what he implied in his testimony.
Mr. Kabemba submitted that the Appellants exaggerated many facts and figures in their testimony. The numerous inconsistencies on issues make it impossible to determine the actual events that took place.
Mr. Kabemba submitted that the Builder’s sub-trades were competent and performed good work. Although some work was incomplete when the contract ended, this does not constitute defective work. The Builder’s sub-trades testified in a credible manner. The Appellants’ were satisfied with their work, so much so that they were willing to re-hire them to continue working after the contract ended. Accordingly, the Appellants’ claim that the sub-trades’ work is defective lacks credibility. There is no reliable evidence of the alleged defects. He stated that Mr. Bottriell’s evidence is not helpful in determining the value of work and material supplied by the Builder. His opinion is speculative and based on incomplete documentation of the work involved in the project.
He submitted that the Appellants were uncooperative with the Builder and had an unrealistic view of costs. They did not provide the Builder a reasonable opportunity to work out the disputes over his request for additional money and hastily contacted their lawyer with a plan to terminate the contract. Mr. Kabemba suggested that the speed of the Appellants’ actions to terminate the contract was deliberate. Had the Appellants been more cooperative, the Builder and his sub-trades would likely have continued to work on the project. He argued that the Builder never abandoned the project; rather, it was Appellant BM who told him to leave the site. He submitted that the Appellants do not have a cause of action against the Builder.
THE LAW
The applicable provisions of the Act are as follows:
Compensation
14 (1) Subject to the regulations, a person who has entered into a contract to purchase a home from a vendor is entitled to receive payment out of the guarantee fund for the amount that the person paid to the vendor as a deposit to be credited to the purchase price under the contract on closing if,
(a) the person has exercised a statutory right to rescind the contract before closing; or
(b) the person has a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the person because,
(i) the vendor has gone into bankruptcy, or
(ii) the vendor has fundamentally breached the contract.
Same, construction contract
(2) Subject to the regulations, an owner of land who has entered into a contract with a builder for the construction of a home on the land and who has a cause of action against the builder for damages resulting from the builder’s failure to substantially perform the contract, is entitled to receive payment out of the guarantee fund of the amount by which the amount paid by the owner to the builder under the contract exceeds the value of the work and materials supplied to the owner under the contract.
Interpretation, substantial performance
(5) For the purposes of this section, a contract is substantially performed if it is substantially performed within the meaning given by subsection 2 (1) of the Construction Lien Act.
Other recovery
(6) In assessing the amount for which a person is entitled to receive payment out of the guarantee fund under this section, the Corporation shall take into consideration any benefit, compensation, indemnity payable, or the value of work and materials furnished to the person from any source.
Powers of Tribunal
(3) Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation.
The applicable provisions of Regulation 892 are as follows:
Limits of Liability
- (1) In the case of a home of a type referred to in clause (a) or (b) of the definition of “home” in section 1 of the Act, the maximum amount payable to a person out of the guarantee fund in respect of a claim under subsection 14 (1) or (2) of the Act is,
(b) $40,000 in respect of a claim in relation to a purchase agreement, or a construction contract, entered into on or after February 1, 2003. O. Reg. 2/03, s. 1.
ISSUE
The issue before the Tribunal is whether the Appellants are entitled to receive payment out of the guarantee fund in that the amount they paid to the Builder under the contract exceeds the value of the work and materials supplied by the Builder?
APPLICATION OF LAW TO FACTS
In order to be eligible to claim financial loss under the Act, a claimant is required to provide evidence that the total paid by a claimant to the builder under the contract exceeds the value of the work and materials provided by the builder before the termination of the contract. The maximum payable by Tarion under a claim for financial loss due to unfinished work is $40,000.
The onus is, therefore, on the Appellants to prove they have an entitlement for payment out of the guarantee fund.
The Tribunal was presented with a great deal of evidence and testimony, much of it was found to be repetitious, and claimed facts were not supported by either relevant documents or referenced individuals appearing as witnesses.
Although there is dispute between the Appellants and the Builder as to who prepared the contract, it is a fact that both parties negotiated a contract and entered into an agreement for the construction of a home. It is an undisputed fact that the Builder did not complete the home.
Given the divergent testimony on material facts, credibility was an issue in this hearing. To varying degrees, the Appellants and the Builder contradicted themselves and each other throughout their testimony. The Tribunal found some of the evidence unreliable or of little utility. The version of events surrounding the drafting of the contract, verbal approval for extras, disputes over costs and the termination of the contract, are so diametrically opposed that the Tribunal finds that neither the Appellants nor the Builder were telling the full truth, rather, he truth likely lies somewhere in between the versions of events.
Given the evidence, the Tribunal finds that no party was free of fault. It was not possible to determine who wrongfully brought the contract to an end and if there is an innocent party.
For purposes of this decision, the Tribunal is making the assumption that the Appellants have a cause of action against the Builder for damages resulting from the Builder’s failure to substantially perform the contract as per s.14 of the Act.
In determining whether the Appellants are entitled to receive payment out of the guarantee fund in that the amount they paid to the builder under the contract exceeds the value of the work and materials supplied by the Builder, the Tribunal must address the reliability of the evidence heard at the hearing.
There is no dispute that the Appellants paid the sum of $136,760.00 to the Builder. The Appellants allege there were defects in the construction and they incurred additional costs to rectify the defects. They arrived at a lower figure in their assessment of work and materials supplied by the Builder by deducting what they perceived were the costs to repair the defects. The Tribunal finds that there is no reliable evidence in support of the alleged defects. The Appellants’ documentary evidence is an unsigned and undated “defect report” from a contractor who did not appear as a witness. Tarion was unable to conduct an inspection of the defects due to the advanced state of construction. There is a lack of evidence on the actual costs and it is pure speculation as to what needed to be done or whether the work was completed in a manner originally specified in the Builder’s contract.
Mr. Bottriell’s opinion on the value of work provided by the Builder was requested by the Appellants 18 months after the termination of the contract and without the benefit of an inspection of the property. His report and evidence is almost exclusively based on photographs taken by Tarion and information provided to him by the Appellants and their Counsel. Documents from the Builder and the sub-trades ought to have been provided for a more complete review and assessment.
The Tribunal finds, in these circumstances, that, only through a full review of all the relevant documents pertinent to this case and an inspection of the property, could an expert properly reach an opinion that could be relied upon by the Tribunal. The Tribunal therefore does not put as much weight on the value of work and materials assessment put forth by Mr. Bottriell.
The most reliable evidence was provided by the Builder’s sub-trades. The Tribunal finds that all three witnesses were forthright, answered questions without hesitation and assisted the Tribunal in providing detailed evidence of events when they were on site. All three witnesses acknowledged some work was incomplete and reflected this fact by reducing their final invoices to the Builder.
The Tribunal accepts the clear evidence of the Builder’s sub-trades which is substantially corroborated by invoices, a log or other relevant documents created at the time they performed the work. In summary, the value of the work and materials supplied by the sub-trades consists of $89,145.25 (Mr. Annibilini), $43,505.00 (Mr. Bacic) and $14,125.00 (Mr. Zacconi) and is a total of $146,775.25. If the standard 15% builder’s mark up for overhead and profit is added, the final amount of value is $168,791.53. The Tribunal prefers the evidence of the sub-trades over that of Tarion’s Xactimate value as it is a more reasonable assessment of the value of all the work and materials supplied by the Builder at the time the contract ended.
On the evidence before this Tribunal, and for the reasons given, the Tribunal finds that that the Appellants have not shown that the amount they paid the Builder for the work performed on their home ($136,700.00) exceeds the actual value of the work and material supplied by the Builder. The Appellants are therefore not entitled for payment out of the guarantee fund.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the claim in full.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: April 29, 2015