COURT FILE NO.: 104/13 (Simcoe) DATE: 2017 04 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KEEN LANDSCAPING INC. Paul Hosack, Counsel for the Plaintiff
- and -
ANN MARIE STEWART Self-Represented Defendant
RULING #1: JUDGMENT ON CONTRACT LIABILITY
Barnes, J.
INTRODUCTION
[1] This is the trial of an action commenced under the Construction Lien Act, R.S.O. 1990, Chapter C.30 (The Act). Ms. Stewart (the defendant) and Keen Landscaping Inc. (the plaintiff) entered into a contract. The contract required the plaintiff to install the fiberglass pool at the defendant’s home (the project). The plaintiff installed the fiberglass pool.
[2] The plaintiff sues the defendant for failure to pay for the installation of the pool. The defendant disputes that she entered into a contract with the corporation; the amount payable under the terms of the contract and the quality of the work done by the plaintiff.
[3] The trial commenced with the defendant represented by counsel. The defendant requested to be excused for medical reasons. This request was granted. The defendant subsequently parted ways with her counsel. She returned and represented herself.
[4] After trial, I concluded that the defendant contracted with the plaintiff as a corporation – Keen Landscaping Inc.; glue was oozing from the patio stones; the pool patio steps do not comply with the Ontario Building Code and a short hearing was required to determine the cost of remedying these deficiencies. These are my reasons. These reasons are a minor amplification of my endorsement dated March 27, 2017 and replace those reasons.
[5] I have carefully considered all of the evidence called at this trial as well as all the submissions of counsel and the unrepresented defendant. However, I do not reproduce all of the evidence called or all of the submissions of counsel. I only refer to those portions of the evidence and submissions that are necessary to provide context for and explain the conclusions I have reached in this trial.
ISSUES
[6] These are the issues raised in the trial:
a) Was the defendant aware that she was dealing with a corporate entity? b) Was there a contract? c) What was the value of the contract? d) Did the plaintiff substantially complete the project in accordance with the provisions of the Ontario Construction Lien Act? e) If, yes what should be the remedy?
PRELIMINARY MATTERS
Solicitor Client Privilege / Conflict of Interest
[7] During the trial the plaintiff sought and was granted permission to introduce communication sent by the defendant to lawyers at the plaintiff’s lawyer’s firm: Exhibit 1, tab 29. The defendant opposed the introduction of this document on the basis of an assertion that she was a client of the plaintiff’s lawyer’s firm and that the introduction of the document constituted a breach of solicitor client privilege and placed the plaintiff’s lawyer in a conflict of interest.
[8] The Supreme Court of Canada in MacDonald and Martin [1990] 3 S.C.R. 631 outlines the applicable principles in a conflict of interest analysis. I note that the defendant’s objection was limited to an assertion of a conflict of interest if the document was admitted into evidence and not expanded to include the propriety of the plaintiff’s lawyer continuing the trial.
[9] The Supreme of Canada decision in Descoteaux v Mierzwinski, [1982] 1 S.C.R. 860 sets out the principles to guide a determination of whether solicitor client privilege attaches to a communication. I entertained submissions from counsel on these issues. Given the nature of the defendant’s assertion, particularly her description of herself as a former client, a voir dire to elicit further evidence would have been preferable. The defendant had been excused from the proceedings for medical reasons and was unavailable for a voir dire. Given the nature of the allegations there was also a possibility that counsel for the plaintiff may have been a witness in the voir dire.
[10] For all the foregoing reasons, I place no weight on the document described as Exhibit 1, tab 29. All answers elicited from all witnesses in regards to this document have not been considered by this court.
Expert Reports
[11] The defendant sought to introduce two expert reports during the course of the trial. The Ontario Rules of Civil Procedure (The Rules) provides a detailed regime for the introduction of expert reports: Rule 53.03. The purpose is to ensure that experts understand that they have a duty to the court; the opinion proved must be unbiased and objective; should not be partisan; should not favour the party who retained them and an expert should also indicate when the subject matter falls outside their area of expertise: Beasley v Beasley, 2010 ONSC 2095, at para. 25.
[12] Rule 53.03 requires the party seeking to introduce the expert report to provide certain prescribed notice; provide an expert report which in addition to addressing the subject matter of the expertise, must include some specific information and must include an acknowledgment of the duty of an expert.
[13] One of the primary issues is whether there have been deficiencies in the work done by the plaintiff. This is a technical matter. Expert opinion on technical matters related to the quality of work done can be most helpful to the court, particularly since there are specific statutory requirements for finding that there has been substantial performance and completion of the contract: See section 2 of the Act.
[14] None of the expert reports the defendant seeks to tender meet the requirements of Rule 53.03. In fact, there is no evidence that the authors of the reports knew that the report was intended for the purpose of litigation. The safeguards to ensure impartiality and objectivity under Rule 53.03 are absent. Given the importance of the technical evidence in this case, the noncompliance with Rule 53.03 is a significant breach. Therefore, I exercise my discretion and exclude the expert reports tendered for consideration in this trial.
[15] The defendant sought to tender expert reports from Mr. Girard and Mr. McLeod. Mr. McLeod was not called as a witness and the defendant did not rely on his report. Mr. Girard based his expert opinion on a survey of the backyard with the pool installed. He did not conduct the relevant measurements, therefore he could not satisfy the court of the accuracy of those measurements or the set point used as a basis for those measurements. Even if I had considered his expert report, I would have given it no weight unless the opinion or conclusion expressed was supported by other independent evidence.
Was the defendant aware that she was dealing with a corporate entity?
[16] I conclude that the defendant knew that she was contracting with a corporate entity.
[17] The defendant said she had no idea she was contracting with a corporation, until after she had entered into a contract to install the fibre glass pool at her residence. She explained that none of the proposals, invoices or business cards submitted by the plaintiff had the word “Inc.” after the words “Keen Landscaping”.
[18] The defendant said she always believed that she was contracting with Neil and Shelly Herrewynen. She said that this is the reason why she did not sign any of the proposals submitted. She conceded that none of the documents she received from the plaintiff had the word’s “Neil and Shelley Hewerrynen, carrying on business as Keen Landscaping”.
[19] Mr. Neil Herrewynen testified on behalf of the plaintiff. He is the president of the plaintiff corporation, Keen landscaping Inc. He said he discussed the corporate status of the plaintiff with the defendant at her kitchen table. The defendant states that she does not recall this.
[20] The defendant is a lawyer; she assisted her daughter with the incorporation of her daughter’s company. She said she was capable of conducting a corporate search to determine whether an entity was incorporated. She said that she did not sign any of the proposals because it was her belief that she was contracting with Neil and Shelly Herrewynen in their personal capacity, however, there is no evidence that she made any inquires of them in this regard or that she conducted a corporate search. It is unreasonable to conclude that she simply did not sign any proposals because of this.
[21] In the result, I find the reasons provided by the defendant to be unreasonable and not credible. I reject it. I accept Mr. Herrewynen’s evidence. I am satisfied on a balance of probabilities that the defendant knew that the plaintiff was a corporate entity.
Was there a contract?
[22] I am satisfied on a balance of probabilities that there is a contract between the plaintiff and the defendant to install a pool, and to provide landscaping and related services at the plaintiff’s residence.
[23] Mr. Herrewynen said he and the defendant agreed on a contract for the plaintiff to install a fibre glass pool at her residence. He said that the contract was based on a proposal dated May 6, 2013. He said the plaintiff installed the fibre glass pool at the defendant’s residence (the property).
[24] Mr. Herrewynen said in December 2012, he installed a swimming pool at the residence of the defendant’s daughter and son-in-law. The defendant saw the plaintiff’s work and wanted the plaintiff to install a pool in her own backyard.
[25] Mr. Herrewynen said that he provided the defendant with a proposal dated March 6, 2013; Exhibit 1, Tab 4. This proposal estimated the cost of the project at C$40,000. He explained that this proposal included a quote for a Cancun fibreglass pool. He said the defendant had selected this pool for her backyard. He said the price of this pool was reduced because it was a display model. Mr. Herrewynen testified that after the defendant saw the March 6, 2013 proposal she said she wanted a bigger pool.
[26] Mr. Herrewynen said that he submitted another proposal to the defendant dated March 31, 2013: Exhibit 1, tab 6. This proposal listed C$18,000 worth of additional items that the defendant wanted. He said this was because the defendant wanted a larger pool. The defendant wanted to remove the old deck on her property. She wanted more patio space. She wanted to put in a sprinkler system. She also wanted an equipment shed.
[27] Mr. Herrewynen said that the defendant did not order the sprinkler system. The March 31, 2013 proposal did not include the price of doing electrical work, did not include the price of excavating beyond the pool and did not include the price of constructing a sidewalk along the side of the property.
[28] Mr. Herrewynen said the defendant indicated her selection of a Dolphin Fiberglass pool by placing a mark beside the model described in the Dolphin fiberglass pool brochure; Exhibit 1, tab 5. This was the Oasis I. He said this was different from the Cancun, which is smaller. He explained that the increased price in the proposal, March 31, 2013, was because the pool was bigger.
[29] Mr. Herrewynen said he submitted a third proposal dated May 6, 2013 to the defendant. This proposal was a reproduction of the earlier two proposals. He said it was a combination of items the defendant had selected from the two earlier proposals. He said the defendant circled Oasis I as her pool selection on the document. The defendant checked off the items she was ordering. These items were the full nose paving at a cost of C$1,140, 825 ft.² of paving stones at the price of C$13,320, a heat pump at a cost of C$3,365, the installation of three sets of patio steps at a cost of C$1,770, a Pentair computer power centre at a cost of C$1,650 and a sprinkler system at a cost of $3,500.
[30] Mr. Herrewynen said the defendant wrote a question mark beside the quote of C$1,150 to install a cement pad for the pool shed. He said she did not want it installed at that time. He said the defendant wrote the words “armour” beside the quote for building three sets of patio steps to the back doors. The defendant initially wanted armour stones to be used in building the steps, but returned to precast modular bricks because of the cost. He said the defendant put the quotation for the pool shed on hold, explaining that she may have someone who could build the shed for her. He also said the defendant wrote the word “leave” beside the cost of sodding the yard.
[31] Mr. Herrewynen said that the defendant cancelled the quotation for removing the deck. She did this by drawing a line through that quotation on the proposal. This was a fixed price contract and the total price for the contract was C$62,570 plus HST. He said the defendant made this notation on the proposal: “date commencing June 6/13 date completion….” This proposal was not signed.
[32] Mr. Herrewynen said the documents at Exhibit 1, tab 8, are drawings showing the original locations of the pool in the backyard. He said the defendant had initially decided she was going to leave the existing deck then decided to remove the deck and have the pool shifted more to the south so she could see it through her kitchen window. He described the drawings as generic. He said the second drawing is the most accurate depiction of where the pool was actually installed.
[33] Mr. Herrewynen said on June 26, 2013, he obtained the pool permit from the County for the construction.
[34] Mr. Herrewynen said the cost of the pool heater was C$3,013.62; Exhibit 1, tab 3 plus gravel at a cost of C$450.83, gravel at a cost of C$194.87, and gravel at a cost of C$450. Mr. Herrewynen said the defendant eventually ordered flowers for the flower and shrub beds at a cost of C$47.60, concrete sand at a cost of C$166.57, and the services of a licensed electrician at a cost of C$1,323.
[35] Other costs: Sod at a cost of C$420, plants at a cost of $132.48, concrete cement at a cost of C$660.49, the Dolphin Pool Oasis I at a cost of C$18,612.23, remote control for pool equipment at a cost of $277.68, components for pool equipment at a cost of $2,965.53, components for sprinkler system at a cost of C$3,112.02, different invoices for various types of stones used for the construction reflecting these costs: C$8,532.39; Stones and sand at a cost of C$312.72, C$190.99, Blue nose stones at a cost of C$508.47, C$83.82, C$2,632.70, C$6.08, $C844.00, C$261.99 and C$109.00.
[36] In cross-examination, Mr. Herrewynen agreed that the total cost of the items agreed to on the May 6, 2013 proposal was $57,495.00 plus HST. He said all of the material was supplied to the defendant’s residence and used in the construction of the pool at her home. He said he paid for all the material. The cost of labour was over C$20,000.00.
[37] He said as the project progressed, the defendant requested additional items. He said he satisfied these additional requests and sent the defendant an invoice dated July 29, 2013. The outstanding amounts listed include: the installation of fencing around the backyard, which was done a year prior to the installation of the pool with payment outstanding. The July 29, 2013 invoice included outstanding amounts for items the defendant had agreed to after the May 6, 2013 proposal was submitted. These items are: extra pavers to enlarge the patio, delivery and installation of topsoil and sod, shape berm, install heat pump pad, install additional paving stones around the pool.
[38] He testified that the July 29, 2013 invoice also included items the defendant had agreed to under the May 6, 2013 proposal. These are: install fiberglass pool, install heat pump for pool, install cement pad for shed, install full nose coping around pool, install steps up to doorways, install computer for pool, and install sprinkler system for lawn areas.
[39] This invoice reflected all the work the defendant had requested and the plaintiff had done for the defendant. Mr. Herrewynen explained that after this invoice he sent the defendant another proposal dated July 30, 2013; Exhibit 1, tab 26, page 3. He said from this the defendant instructed him to install some plant material at her residence at a cost of $3,169.00. Mr. Herrewynen never gave the defendant an invoice for the C$3,169 plant material. The total cost of the project was C$87.014.52.
[40] The defendant made two payments. The first was a bank draft to Keen Landscaping for $33,000.00 dated May 8, 2013; Exhibit 1, tab 2. The second was a bank draft for C$10,000.00 dated July 28, 2013; Exhibit 1, tab 25. He said the defendant gave him this draft on July 29, 2013, when he gave her the July 29, 2013 invoice. The outstanding balance the plaintiff claims is C$44,014.52.
[41] Mr. Herrewynen said on September 4, 2013, he registered a lien on the defendant’s property which shows an amount owing of C$44,014.52.
[42] Mr. Herrewynen said the handwriting on the July 29, 2013 invoice indicating the additional cost for the plant material, calculating the credits to the defendant and the amounts owing by the defendant, were not on the July 29, 2013 invoice when he delivered it to the defendant. He said those notations were made after he placed a lien on the defendant’s property.
[43] Mr. Herrewynen conceded in cross-examination that the defendant did not sign any of the proposals he submitted. He said the only notations she made was on the notations on the May 6, 2013 proposal. He also conceded he did not request the defendant to make payments to him according to the C$5000, C$25,000 and C$15,000 payment schedule listed in the May 6, 2013 proposal.
[44] Mr. Herrewynen said the defendant gave him a bank draft for May 8, 2013. This was two days after the May 6, 2013 proposal. It was C$3,000 more than what was required under the terms of the proposal. He explained that the extra C$3,000 was to pay for the installation of the fence which at that time was already eight months overdue. There is nowhere on the proposal indicating that the extra C$3,000 was to cover the cost of the fence.
[45] The unsigned May 6, 2013 proposal stated that the defendant was to pay C$25,000 when the pool was ordered. Mr. Herrewynen said he has no documentation to indicate the date on which he ordered the pool. He also stated that he submitted drawings for a pool permit which indicated that the shed was 10’ x 10’ and the pool was 14’ x 32’. He conceded that the size of the pool did not accurately reflect what had been ordered. The Oasis I is 33’ x 13’.
[46] He also conceded that the cost of the construction listed in the application for the permit is C$40,000. He explained that the County only required the cost of the pool not the cost of other construction and that all that was required to obtain the payment was an estimate, not the actual cost of construction. He said he did not use the exact cost figures because they were not relevant to the County.
[47] Mr. Herrewynen said there was a delay in getting the pool permit because the defendant was slow in providing him with a copy of the legal description of her property. He said the whole process began in December 2012 and it took the defendant until May 6, 2013 to decide what type of pool she wanted.
[48] Ms. Stewart testified that she bought her current residence (the property) in 2012. Prior to moving to Yeager Crescent, Mr. Herrewynen came to her previous home (Berkeley Street) to discuss building a pool at Yeager Crescent. She said she was given a quote of C$70,000 for the whole project. The defendant said this included the cost for constructing a wrought iron fence on the property.
[49] She said they had discussed installing a large pool, beautiful backyard, and eating area and the cabana. He showed her some pictures and drawings. The pool was a fiberglass pool. She relied on Mr. Herrewynen’s expertise in installing pools.
[50] The defendant said, and they discussed, that the soil composition of the property was sand. He told her that fiber glass pools were good for that type of soil composition. The defendant said she decided to proceed with the installation of the fence. She said the quote was about C$1,800 to install the fence. The fence was installed without incident.
[51] The defendant said sometime later she received an invoice for the fence dated December 20, 2011; Exhibit 1, tab 1. The invoice was for C$3,573.06. The defendant said she was surprised at the price. It exceeded the C$1,800 quote she had been given. The defendant said it included the cost of a small retaining wall that Mr. Herrewynen had put up. She said this was not part of the original quote. She said she expressed concern and was told not to worry about it.
[52] The defendant said she wanted to get the pool she ordered. She expressed to Mr. Herrewynen that his initial quote of C$70,000 was too high. She said Mr. Herrewynen said he could get her a second hand fiberglass pool.
[53] The defendant testified that she attended a home show in 2013. Mr. Herrewynen had a booth selling pools and landscaping. She said there was no sign of any documentation that would suggest that the outfit was a corporation. She testified that Mr. Herrewynen told her that she would need a pool larger in size than the pool on display.
[54] The defendant testified that Mr. Herrewynen sent an email dated March 6, 2013, to her son-in-law. This document is found at Exhibit 1, tab 4. This is the March 6, 2013 proposal. Her son-in-law was acting as her agent. She explained that in this proposal the cost to install the pool was C$27,840. There were quotes for some additional items.
[55] The defendant said she decided to purchase her own shed. She had a carpenter who could put it up. She said she had a subsequent phone conversation with Mr. Herrewynen. He said he could build the concrete slab for the shed and the shed itself for C$4,000. The defendant explained that the total project quote in the March 6, 2013 proposal was about C$42,810. She explained that this quote did not include the cost of electrical work or the installation of the sprinkler system.
[56] The defendant explained that in the March 6, 2013 proposal she agreed to the installation of the pool. She agreed to the use of armour stones. She agreed to the installation of the patio around the pool. She said she did not sign an actual contract. The defendant said Mr. Herrewynen understood what she wanted and she understood what the cost was. She said she had no reason to conclude that the project was not going ahead. The defendant said it was understood that the estimated project cost was C$40,000.
[57] The defendant said the contract was based on the March 6, 2013 proposal. She clarified that the March 31, 2013 proposal; Exhibit 1, tab 6 and the May 6, 2013, proposal; Exhibit 1, tab 7 did not form the basis of the contract.
[58] The defendant said that sometime in May, 2013 she told Mr. Herrewynen that she wanted an Oasis I pool. Later on she called Mr. Herrewynen and requested a larger pool, an Oasis II. Mr. Herrewynen agreed and said her backyard could handle a pool that size. She said instead, an Oasis I pool was delivered to her property.
[59] The defendant testified that the plaintiff failed to obtain a permit for the 10 x 10 shed as proposed, failed to apply for a permit for grading in the backyard and the pool permit was never inspected. She said, therefore, the permit was not a valid permit for construction. She also said the electrical permit was not a valid electrical permit for the pool.
[60] The defendant said Mr. Herrewynen caused delays in commencement of the project. She referred to text messages which she said indicates that Mr. Herrewynen was delaying the commencement of the project; Exhibit 5, tab 7. She said that by the beginning of July, 2013, she was assured by Mr. Herrewynen that the permit had been applied for.
[61] The defendant explained that during the first week of July 2013 she had a discussion with Mr. Herrewynen. They discussed a diagram of the location of the pool. She said she told Mr. Herrewynen that the pool was to go in front of the two double doors exiting from the living room. She wanted the pool shed and barbecue area to be off the kitchen door. She wanted to have a full view of the pool while in her kitchen.
[62] The defendant said the pool was installed in the wrong position. The steps were not made with the armour stones as she requested. The steps were uneven. The steps were not installed according to the Building Code. The retaining wall was not made of the stone she requested. The backyard was not created in accordance with the plan of subdivision. The work in the backyard created a negative grade. The glue holding the stones together was oozing out. The defendant said she brought these concerns to Mr. Herrewynen’s attention and that in July, 2013 the project was not completed.
[63] She said Mr. Herrewynen delivered the more expensive electrical heater instead of the gas heater she wanted. She said Mr. Herrewynen told her that this was a high efficiency heater, despite that she received a higher hydro bill for July and August 2013. She said because the pool never worked she cannot indicate whether the higher bills were because of the electric heater. The pool lights kept going on and off. The salt water system sensor was constantly going. The pool lights were freezing. The pump was not running. The pool was leaking water. The defendant said she tried to address the issues with Mr. Herrewynen right up until mid-August 2013. The defendant explained that the pool was completely unusable.
[64] The defendant explained that she never agreed to purchase the plant material described in the July 30, 2013 proposal; Exhibit 1, tab 26. She said Mr. Herrewynen offered to put some plants in planter boxes. The cost was to be under C$1,000.
[65] The defendant said she did not receive the Dolphin fibre glass pool described in Exhibit 1, tab 19. She said the pool that was installed in her property had no drainage.
[66] The defendant said the July 29, 2013 invoice she received is different from the plaintiff’s July 29, 2013 invoice with the same invoice number 53154; Exhibit 1, tab 26. She said the invoice she received showed a total project cost of $83,433.00. I note that page 3 of Exhibit 1, tab 26 has a project total cost of 83,433.55.
[67] The defendant said she never received delivery of some of the stones described in Exhibit 1, tab 20A. She said she received the silver sand stones invoiced at C$891.80, C$618.80 and C$1,365.00. She said she did not receive the other stones described in that invoice.
[68] The defendant said she contacted the Electrical Safety Authority and discovered that there was no electrical permit for the pool. There was only a permit for an on-site pony panel. She said the GFI for the pool was not working. She said that Electrical Safety Authority discovered that there was a defect. The defect related to winterizing and covering the electrical pony panel. She said she discovered these defects on August 8, 2014.
[69] The defendant said by September, 2013 it was apparent that Mr. Herrewynen was not being truthful. He had not resolved the outstanding issues. He had left her with a July 29, 2013 invoice, with a total project cost of over $80,000 Canadian dollars and had included items she had not contracted for.
[70] The defendant said she contacted Mr. Girard of Global Property Inspectors to do an inspection of the pool. She said she also contacted an engineer, Don Macleod, to prepare a report; Exhibit 5, tab 3.
[71] The defendant said that the March 6, 2013 proposal formed the basis of the contract. She conceded that not all items installed were on that proposal. She conceded that she did make some markings on the May 6, 2013 proposal.
[72] The defendant’s own testimony indicates that the contractual relationship between the parties was an evolving one as items were added or subtracted based on ongoing discussions and calls in question the defendant’s stance on the central role the proposal dated March 6, 2013 played.
[73] I have already made an adverse credibility finding against the defendant on the issue of her knowledge of the plaintiff’s incorporation status and do not accept her evidence on the definitive nature of the March 6, 2013, proposal. I accept Mr. Herrewynen’s evidence.
[74] I am satisfied on a balance of probabilities that the discussions between the parties continued to evolve with the addition and subtraction of items. I conclude that the July 29, 2013 proposal and the plant material quote from the July 30, 2013 proposal reflect the agreement between the parties and the cost of the project they agreed to.
What was the value of the contract?
[75] Based on the foregoing, I am satisfied on a balance of probabilities that the invoice dated July 29, 2013; Exhibit 1, tab 26, represents the items agreed to by the parties. The total contract price is $87,014.52.
[76] The defendant has paid a total of $40,433.55. The defendant owes $46,580.97.
Did the plaintiff substantially complete the project in accordance with the provisions of the Ontario Construction Lien Act?
[77] Mr. Herrewynen testified that after the completion of the project the defendant had a number of complaints: first, that the chlorine generator was not generating chlorine. He said he asked the manufacturer of the equipment’s representative to test the chlorine generator. The test was performed and the only problem found was the pool temperature was 90°. The ambient air temperature was 66°. Therefore there was evaporation from the pool. He said the defendant refused to get a solar blanket, which would have resolved the problem.
[78] Second, the defendant informed him that the Dolphin fiberglass pool was leaking. He contacted the sales representative for Dolphin Fiberglass Pools. The representative tested it and found the pool was not leaking.
[79] Mr. Herrewynen said the defendant was responsible for building a shed, the wall for an electrical panel and a shed for the electrical panel. He explained that a permit for electrical work could not be obtained until a panel had been built. He said the defendant’s handy man built a wall and his electrician installed the electrical panel for the pool. It was the defendant’s responsibility to build a shed for the electrical panel.
[80] Mr. Herrewynen conceded that the patio steps were not built in accordance with the Building Code and the glue holding the stones around the pool had oozed out.
[81] The defendant said that there was no GFI for the pool. Mr. Whamsley is a qualified electrician who did the electrical work for the pool. He testified that due to the low voltage of the lights in the pool, no GFI was required. He said any defect that was subsequently detected in his work was because the defendant failed to build the shed to protect their electrical panel from the elements. There is no basis to reject his evidence.
[82] I have considered the series of problems the defendant said she had with the pool. I have considered the text messages between the defendant and Mr. Herrewynen. In the context of the whole of the evidence, they illustrate that the defendant expressed some difficulties with the pool to Mr. Herrewynen. The defendant also expressed in those messages that she was happy with his work.
[83] Given the findings I have made about the defendant’s credibility, I reject her evidence on the extent of the deficiencies and accept Mr. Herrewynen’s evidence on the steps he took to address them and the conclusions that everything was in order.
[84] I am satisfied that the work the plaintiff performed constituted an improvement on the defendant’s property in accordance with the definition in section 1 of the Act.
[85] The defendant has submitted that the plaintiff has failed to obtain the appropriate permits for electrical work, the pool and also for grading. I assess the issue of substantial performance and completion in accordance with the statutory conditions set out in section 2 of the Act.
[86] Therefore, there will be a further hearing to determine the cost of rectifying the defects as I have found them. These are the glue oozing from the stones and the steps not built in compliance with the Building Code.
[87] At the end of the hearing, I will determine whether the plaintiff has satisfied the statutory preconditions for substantial performance and completion under the Act and the remedy that should flow from that finding.
Barnes, J.
Released: April 10, 2017