Court of Appeal for Ontario

DATE: 20220126 DOCKET: C69392, C68726 & C68728

Huscroft, Trotter and Coroza JJ.A.

Parties and Representation

DOCKET: C69392

BETWEEN

Homes of Distinction (2002) Inc. Plaintiff (Respondent)

and

Elisa Angela Adili and the Toronto-Dominion Bank Defendants (Appellant)

AND BETWEEN

Elisa Angela Adili Plaintiff by Counterclaim (Appellant)

and

Homes of Distinction (2002) Inc. Defendant to the Counterclaim (Respondent)

DOCKET: C68726

BETWEEN

Anthony Adili and Elisa Angela Adili Plaintiffs (Appellants)

and

Homes of Distinction (2002) Inc., Roberto Venier and City of Hamilton Defendants (Respondents)

AND BETWEEN

Homes of Distinction (2002) Inc., and Roberto Venier Plaintiffs by Counterclaim (Respondents)

and

Anthony Adili and Elisa Angela Adili Defendants to the Counterclaim (Appellants)

DOCKET: C68728

BETWEEN

Anthony Adili and Elisa Angela Adili Plaintiffs (Appellants)

and

Homes of Distinction Inc., Roberto Venier and City of Hamilton Defendants (Respondents)

AND BETWEEN

Homes of Distinction Inc., and Roberto Venier Plaintiffs by Counterclaim (Respondents)

and

Anthony Adili and Elisa Angela Adili Defendants to the Counterclaim (Appellants)

Counsel: Daniel Fridmar, for the appellants David Thompson and Michael Grant, for the respondents

Heard: January 12, 2022 by video conference

On appeal from the judgment of Justice Richard A. Lococo of the Superior Court of Justice, dated September 16, 2020, with reasons reported at 2020 ONSC 5344.

Reasons for Decision

[1] In 2007, the appellants decided to renovate their home. They contracted with the respondent, a builder who carried on business as Homes of Distinction (2002) Inc. (“HoD 2002”). The builder’s principal is the respondent Roberto Venier. [1]

[2] The parties reached an oral agreement for the project in the spring of 2008. Regrettably, the relationship between the parties fell apart during the project and by 2010, HoD 2002 withdrew its services and registered a construction lien on the property to secure outstanding payments for work completed. For their part, the appellants advised HoD 2002 that the contract was terminated and alleged that its work was deficient and non-compliant with the Ontario Building Code, O. Reg. 332/12. The appellants hired other contractors to complete the renovation and to rectify some of the alleged deficiencies.

[3] Litigation ensued. The respondents commenced a construction lien action and sought to recover from the appellants the balance claimed as owing. The appellants denied they owed anything and brought their own action, alleging incomplete and deficient work and seeking over $1,450,000 from the respondents for amounts they incurred or would need to incur to complete the project and rectify the respondents’ work. The appellants also claimed that the City of Hamilton was negligent because its building department personnel were involved in issuing a building permit and inspecting the project. [2]

[4] The actions were heard over 43 days at trial. Ultimately, the trial judge found the appellants liable to the respondents for most of the amount claimed. The trial judge dismissed the Adilis’ claims against the respondents and the City.

[5] First, the trial judge found that there was an oral contract between HoD 2002 and the appellants. Second, the trial judge found the parties had not agreed to an enhanced standard of construction that went beyond the requirement to perform work in “a good and workmanlike manner” and meet the mandatory requirements in the Building Code. Third, he found that “there was no meeting of the minds with respect to the specific level of the allowances” but that “the parties’ agreement contemplated some reasonable limit” for expenditures, and that excesses of these amounts would be the appellants’ responsibility as an “extra”. Fourth, he found that the appellants breached the building contract by not paying. Finally, he found that the respondents had not breached the contract and, after reviewing the evidence, held that the respondents were not liable for alleged deficiencies. [3]

[6] On appeal, the appellants advance several arguments.

[7] First, the trial judge made a palpable and overriding error in disregarding uncontroverted expert evidence that HoD 2002 breached the Ontario Building Code when finding that HoD 2002 complied with the standard of construction required by the building contract. We disagree.

[8] At trial, the appellants proffered the expert evidence of Giancarlo Lancia whom they retained to provide opinion evidence with respect to engineering and Building Code matters. Mr. Lancia’s evidence was the lynchpin of the appellants’ argument regarding structural deficiencies and Building Code non-compliance. The respondents challenged this evidence and proffered their own engineering expert. In the end, the trial judge found that Mr. Lancia had assumed an advocacy role for the appellants which he found was “inconsistent with his role as an independent expert witness.” In contrast, he found that the respondents’ expert was independent and preferred the evidence of the respondents’ expert.

[9] We see no palpable and overriding error in the trial judge’s treatment of the expert evidence. The trial judge provided cogent reasons for why he discounted the evidence of Mr. Lancia. As we see it, the trial judge placed little to no weight on Mr. Lancia’s evidence about Building Code violations. That was his call to make and his credibility findings attract deference. In the end, the trial judge assessed Mr. Lancia’s credibility and reliability in the context of the evidence as a whole and concluded that he was less reliable than the respondents’ expert. We cannot intervene simply because the appellants ask us to weigh the evidence differently and arrive at alternative factual findings: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

[10] Mr. Lancia’s opinion evidence was a significant aspect of the appellants’ case. The trial judge’s conclusion that the appellants had not proven the Building Code breaches as asserted flowed naturally from the adverse finding he made against their expert.

[11] We find no merit to this first ground of appeal.

[12] Second, the appellants argue that the trial judge erred in relying on a previous contract that the parties had entered into in 1995 when interpreting the scope of allowances in the present building contract. We are not persuaded by these submissions.

[13] We see no error in the trial judge’s reliance on the evidence of the 1995 contract. The trial judge held that there was “no meeting of the minds” as to the specific level of allowances for the construction components set out in the contract. However, he found that given the parties’ previous experience in 1995, he was satisfied that the parties contemplated some reasonable limit on the extent to which allowances on various construction components were included in the contract price. In our view, the trial judge was entitled to consider the fact that the parties had used allowances in the 1995 agreement in understanding their common knowledge and intentions alongside the other evidence he considered.

[14] Finally, the appellants contend that the trial judge made a palpable and overriding error in calculating the respondents’ damages. They argue that the trial judge awarded the respondents double recovery in the final calculation of damages by excluding the appellants’ payments for work not covered by the contract (the excluded invoices), but at the same time allowing the costs of those items back into the damages award by way of the respondents’ spreadsheet calculations.

[15] We do not accept this submission. The trial judge heard and rejected the appellants’ argument that these invoices should be included in the amount calculated as already paid to the respondents. He clearly accepted Mr. Venier’s evidence on damages, including the spreadsheet the appellant challenges. The trial judge was entitled to accept the respondents’ calculations as reasonable based on all the evidence before him. We are not persuaded that we should intervene in the trial judge’s assessment of damages.

[16] In conclusion, we reject the arguments advanced by the appellants. The appellants’ submissions are a request for this court to redo the careful work and analysis of a trial judge who presided over a highly contentious trial that took 43 days. That is not our function. There is simply no basis to interfere with the trial judge’s conclusions which were all firmly anchored in the evidence.

[17] Although there were other grounds of appeal advanced in their amended notices of appeal, they were not pursued in the appellant’s factum nor pressed in oral argument. We see no merit in any of these other grounds.

Conclusion

[18] For these reasons, the appeal is dismissed. We fix costs in favour of the respondents in the agreed upon amount of $30,000 all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”

Notes

[1] In these reasons, the three respondents are referred to collectively; however, for clarity, the building contract was formed between the Adilis and HoD 2002 specifically. Homes of Distinction Inc. is a related dormant company.

[2] This claim was dismissed at trial. The appellants’ appeal against the City of Hamilton has been abandoned.

[3] The trial judge did, however, grant a credit to the Adilis based on what HoD 2002 had already offered them – $27,238 for incomplete items and $20,000 as an allowance for deficiencies. The trial judge subtracted this from the total amount owing to HoD 2002.