DIVISIONAL COURT FILE NO.: 70886/04

DATE: 20050922

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, MEEHAN, MATLOW JJ.

B E T W E E N:

GAREEN HOMES INC.

Ari B. Kulidjian and Natalia Angelini, for the Plaintiff/Respondent

Plaintiff/Respondent

• and -

OLEKSANDR MAMITKO

Mauro Marchioni for the Defendant/Appellant

Defendant/Appellant

Heard at Newmarket: September 15, 2005

ENDORSEMENT

[1] Mamitko appeals from the Judgment of Justice Boyko dated February 23, 2004, where Mamitko was ordered to pay to Gareen Homes Inc. $117,706.51 and partial indemnity costs in the amount of $89,163.94. Mr. Mamitko on appeal, asks his counterclaim be allowed in the amount of $68,421.00 and be set off against the holdback of Gareen Homes of $68,400.00

[2] Gareen Homes has cross-appealed and asks for judgment in the amount of $170,047.51.

[3] This court has jurisdiction to hear this appeal, pursuant to section 71 of the Construction Lien Act.

[4] This construction lien trial took place over 11 days, intermittently over more than a year.

[5] The parties contracted for the demolition of an existing home and construction of a new home in Vaughan for a price of $720,000. At one time during the course of construction, the contractor left the site, returning more than a month thereafter when lawyers for the parties negotiated an agreement for return to work.

[6] Gareen sued for $68,400 in holdbacks, (which was acknowledged) and damages in the amount of $63,426.46 for extras and $24,208.33 in overhead costs attributable to delay.

[7] Mamitko counterclaimed for Breach of Contract, deficiencies in construction and costs incurred because of delay.

[8] The extras claimed by Gareen fell into several categories: basement extras, repairs to the basement for water damage, which took place during the time the contractor was off the job; kitchen extras and the overhead delay costs.

[9] Mamitko’s counterclaim consisted of replacement of the interlocking driveway, deficient gate posts and the delay costs.

[10] Boyko J. allowed partial judgment to Gareen for $68,400 for the holdback and $47,526.76 for the extras and also allowed Mamitko’s counterclaim in part, for $24,250.00.

POSITION OF THE PARTIES

Position of the Appellant

• There was insufficient evidence to support the claim for extras in relation to drywall in the basement, and it was an error in law to award this extra since Gareen Homes did not adhere to the contractual provisions regarding extras.
• There was insufficient evidence to support the claim for extras in relation to the painting of the basement and the staining of the stairs and it was an error in law to award this extra since Gareen Homes did not adhere to the contractual provisions regarding extras.
• There was no evidence whatsoever to support the claims of Gareen Homes for overhead costs, and it was an error to find that a 30% overhead charge was to be allowed on extras, and that a 40% charge was to be levied, but a 10% discount to be applied for lack of actual evidence.
• There was insufficient evidence to grant recovery to Gareen Homes on the kitchen claim and for overhead costs incurred as a result of alleged delays.
• It was an error to discount Mamitko’s counterclaim in relation to the interlocking driveway, lack of provision of gateposts, and delay, as there was sufficient evidence to support these claims.

Position of the Respondent

• It was not a palpable and overriding error for Boyko J. to find that Gareen was entitled to recover money claimed for extras, even though the request and authorization procedure set out in the contract was not followed, since Mamitko requested these extras and Gareen ought to be compensated for the increased costs.
• It was not a palpable and overriding error for Boyko J. to allow the claim for overhead, since this claim was supported by evidence at trial and not disputed by Mamitko by way of any evidence.
• Gareen’s delay costs claim was supported by evidence, namely the fact that Mamitko did not pay on time a sewer connection fee and payments to Gareen that Mamitko agreed to pay in order to have work restarted after Gareen walked off the site and was forced to place a lien on the property, and Mamitko led no evidence to the contrary.

Position on the Cross-Appeal

• Gareen Homes is appealing Boyko J.’s decision on the following issues: the basement electrical extras, the water damage, the counterclaim award to Mamitko for the driveway, gate posts, and delay.
• Electrical extras – Mamitko specifically requested these and there was sufficient evidence to show that this work was separate from the electrical work done elsewhere in the house.
• Water Damage – During the lien period, the basement flooded and the cleanup and repair costs associated with the flood were disallowed by Boyko J. on the grounds that it remained Gareen’s responsibility to ensure the safety of the premises and that Gareen failed to prove that it was Mamitko’s fault that the flood occurred, despite strong evidence (detailed on the Factum), that it was Mamitko’s fault.
• Interlocking Driveway – Boyko J. awarded repair damages to Mamitko in the amount of $12,000 notwithstanding that in her endorsement she said she was not satisfied that the entire driveway needed to be replaced and that there was evidence to support an inference that a new purchaser requested certain changes to the colour and design of the driveway.
• Gate Posts – There was strong evidence that Boyko J. should not have given judgment to Mamitko on this issue.
• Delay – Mamitko was awarded $2,750 on this issue but there was strong evidence to show that he should not have been.
• Under the parol evidence rule, consideration of extrinsic evidence is precluded if it is inconsistent with the written contract.
• Boyko J. erred in law, in fact, or in mixed law/fact on the issues above.

[11] Boyko J. in her judgment, dealt with each of the matters raised by the parties; as set out in the plaintiff’s Scott Schedule. Her endorsement dealt with the contract itself and found that Mamitko was often on the site during construction and even would direct the painter to repaint the kitchen a different colour.

[12] She identified section 5.1 of the contract which required the owner to request extras or upgrades in writing. She found as well, discrepancies between the contract documents and the plans. She found that both parties didn’t always respect clause 5.1.

[13] She then proceeded to deal with the extras on the basis of the conflicting oral evidence. This included the basement drywall, painting, electrical, carpet, carpentry and overhead. She as well, dealt with kitchen extras and ultimately, the water damage claim. On some claims, the contractor was successful, on others the home owner.

[14] Upon the counterclaim, she dealt with the claim for the interlocking driveway, allowing only $12,000 out of $49,230.00. She allowed the claim for deficient gate posts, but commented that Lapoyan’s estimate seemed low and Mamitko’s far greater without any basis.

[15] She dealt with Mamitko’s delay claim and allowed $2,750.

[16] There was, in our view, no palpable error demonstrated by the trial judge in dealing with the plaintiff’s action and the counterclaim. While our attention was called to evidence contrary to the trial judge’s findings, in each instance there was also evidence to support those findings. An example may be seen with the weak evidence of the contractor as to damages for delay. He did however, give oral evidence as to his costs, which the judge chose to discount because of the imprecision.

[17] It was undoubtedly open to her to find that parties upon the evidence from time to time did not follow the provisions of the contract and more particularly sec. 5.1. To do so was not an error of law which would call into play the basic rule which would allow us to replace the opinion of a trial judge on a question of law. (Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. No. 31 [2002] S.C.J. No. 31).

[18] The standard of review of findings of fact is that they are not to be reversed unless it can be shown that the trial judge made a palpable and overriding error. (Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802).

[19] For a more recent pronouncement of the deference due to trial judges, particularly in complicated cases, see Waxman v. Waxman, 2004 39040 (ON CA), [2004], O.J. No. 1765.

[20] We find no reason to interfere with the findings of the trial judge on the main action, or the counterclaim. The appeal and cross-appeal are both dismissed.

[21] Counsel may provide cost submissions in writing within 30 days to the court.

MEEHAN J.

LANE J.

MATLOW J.

Released: