ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-00382765
DATE: 20120306
BETWEEN:
BRENT BIRD Plaintiff – and – PARMJIT MANGAT Defendant
Orie Niedzviecki & Lauren Lackie, for the Plaintiff
Defendant, In Person
HEARD: February 13, 14, 15 & 16, 2012
LEDERER J.:
[ 1 ] As a purchaser, you get what you pay for. Similarly, as a seller, you get paid for what you provide.
INTRODUCTION
[ 2 ] In this case, the defendant contracted with the plaintiff to renovate parts of his home. There were problems that needed to be corrected before the job could be properly completed. The defendant was unwilling to pay for the repair of some of these underlying concerns. The plaintiff says he finished the job as best he could. Nonetheless, the job was not completed to the satisfaction of the defendant. The plaintiff acknowledged that there are elements of the project that have not been finished in a way that would, in the normal course, be acceptable. He says this is the result of the unwillingness of the defendant to pay to have the necessary remedial work done. On the other hand, the defendant says that there is work of the plaintiff which is unsatisfactory and unacceptable. As a result, the plaintiff is suing the defendant for payment for work he says he performed and the defendant is counterclaiming for the cost of having the work re-done.
[ 3 ] The problems between them are exacerbated by the fact that, while there was a contract, some of its terms were unclear and many were ignored.
BACKGROUND
[ 4 ] The defendant assisted the plaintiff in adopting a child born in India. The defendant learned that the plaintiff operated a renovation business. The defendant wished to have work done on his home. He discussed his plans with the plaintiff. The plaintiff visited the home and the defendant reviewed, in some detail, the improvements he wished to make. The plaintiff considered the project and made a proposal. The defendant had received two other bids. Feeling that, as a result of the adoption there was a bond between them, the defendant offered that, if the plaintiff was prepared to meet the price presented by another of the bids, he would hire the plaintiff to do the work. The plaintiff, encouraged by the promise of the defendant to recommend him to others, re-considered his proposal and agreed.
[ 5 ] The plaintiff prepared a contract. It was signed by the parties on July 23, 2007. Given the different understandings that developed over what the contract required, it could be said that this action is rooted in this document and the failure to adhere to its terms. The contract called for drawings to be supplied before the “reconstruction portion of Reno begins”. [^1] The document did not specify which of the parties was to produce the drawings. The plaintiff said that he did prepare something in furtherance of this obligation. It was never produced in the trial but, as described by the plaintiff, sounded to be informal and not the work of a professional draftsman. He called them “rough sketches”.
[ 6 ] Without proper drawings, it is difficult to determine the scope of the work. This problem is underscored by the terms of the contract. It appears to be a fixed price contract: “The contract price is to be calculated as follows…, Stipulated fixed cost basis (all inclusive) $30,000 plus applicable taxes” [^2]. The contract contained a “Payment Schedule”. It provided the times at which payments were to be made. The schedule corresponded to events that were to occur over the course of the project, as follows:
Signing of Contract: $3,000
Start-up of Work: $7,000
Upon completion of ensuite: $9,000
Upon completion of main washroom: $7,000
Upon completion of front entrance: $3,000
Substantial Completion: $1,000
Full Completion: $1,800
TOTAL $31,800 [^3]
[ 7 ] This amount is in excess of the $30,000 stipulated as the fixed price. It included tax (“GST”) valued at $1,800 [^4]. While the schedule referred to areas in the home that were to be renovated, the scope of the work remained unclear.
[ 8 ] What was clear is that, contrary to the words quoted, the $30,000 did not include all of the costs of the project. In evidence, the parties agreed that this amount referred only to the cost of labour for the work included in the contract. Section 1 of the contract was entitled; “Contract Documents”. Nonetheless, under s. 1.5 (“Other”), rather than outline additional documents, the contract provided a general indication of what the plaintiff was to supply (apart from labour) and when the defendant was to pay for those items. It said: “All supplies or material directly pertaining to construction will be paid for By owner, at the end of every week’s work” [^5]. The parties do not agree as to what this meant and did not comply with what it required. The defendant became concerned with what he was being charged for. Why was it necessary for the plaintiff to rent a “Dodge caravan” for a week? What allowed the plaintiff to charge a mark-up for the material he purchased over what he paid? The plaintiff was of the view that the car fell under “supplies…directly pertaining to” the work and that the mark-up was to account for his time in undertaking the purchase of the necessary material. In the hope of overcoming this misunderstanding, the plaintiff, on being confronted by the defendant, agreed not to charge a mark-up with respect to the supplies and materials needed for the work covered by the original contract, as opposed to the additional work he said was required and agreed to by the defendant. It is apparent that the owner was not always asked to and did not always pay for the supplies and material provided by the contractor “at the end of every weeks [ sic ] work”. The work began in early August, 2007. Beginning on August 13, 2007, and on to September 22, 2007, nine invoices requiring payment were delivered by the plaintiff to the defendant. The total value of these invoices was $50,885.51. By October 3, 2007, the plaintiff said he had received cheques in the amount of $70,884.57. One might wonder why the defendant had paid so much more than he had been charged. The defendant told the court that, at the outset, as the work proceeded, from time to time, the plaintiff would approach him, indicate that there was some material or supply that needed to be acquired and the defendant, without anything more being said, would write a cheque. The defendant testified that, at some point, his secretary inquired as to whether he realized how much he had paid to the plaintiff. He instructed his accountant to look into the matter. The accountant, who was called to give evidence at the trial, telephoned the plaintiff and asked to be provided with the receipts that would back up the claims he had made and support the payments he had received. The plaintiff found this an unusual request and refused. The defendant took up the request and, according to the plaintiff, “demanded” the receipts. Receipts were delivered. It was, as a result of a review undertaken by the accountant, that the defendant concluded that the plaintiff was charging a mark-up for the goods he purchased and that there were other charges the defendant thought inappropriate (i.e. gas). In order to deal with this issue, the defendant says he instructed the plaintiff not to buy any further supplies or material. The plaintiff was told that he should indicate to the defendant what he required and the defendant would arrange for it to be purchased. The defendant testified that he did this in an attempt to gain or re-gain control of the acquisition or rental of the goods and equipment required to complete the work. If that was the goal, it did not work. The plaintiff continued working. He continued to purchase material. The charges associated with these acquisitions are found on three additional invoices, dated October 6, 2007 (Invoice 14), October 21, 2007 (Invoice 15) and December 10, 2007 (Invoice 16). The defendant wondered why, for two of these invoices (Invoices 14 and 16), the back-up material contained receipts dated after the date on the invoices. How could he be charged for something that had not been purchased as of the date of the invoice? The plaintiff testified that the dates on these invoices are not the dates on which they were finalized and ready to be delivered to the defendant. Rather, they are the days on which they began. Charges were added as time went on and additional purchases were made. This is not entirely correct. While nothing turns on it, at least one of the receipts produced in respect of Invoice 16 is dated before the date on its face (December 10, 2007). There is a receipt, dated September 22, 2007. The plaintiff agreed that these three invoices were not delivered to the defendant until March, 2008. What is clear from all of this is that the parties did not comply with the requirement, in the contract, that material was to be paid for at the end of each week. The plaintiff did not produce these invoices until the month after the job was completed and the defendant has refused to pay for them since the purchases they represent were not approved by him and bought contrary to his instruction that the plaintiff was not to buy any further material or supplies.
(Decision continues exactly as in the source…)
CONCLUSION
[ 38 ] In the circumstances, I dismiss both the action and the counterclaim. The parties are left where they were when the trial began.
COSTS
[ 39 ] Acknowledging that I have heard no submissions, it is difficult for me to see how costs could be awarded in this situation. Neither party was successful. The defendant was self-represented. While the Rules of Civil Procedure do allow for a party who was without counsel to be awarded costs, it is rare (see: Rule 57.01(4)(e)). On the other hand, without submissions, I may not fully understand the circumstances. Accordingly, if one, the other or both parties seek costs and cannot agree, I will consider submissions, in writing, on the following terms:
Submissions on behalf of the plaintiff are to be no later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.
Submissions on behalf of defendant are to be no later than ten days thereafter. Such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.
Submissions, in reply, on behalf of the plaintiff are to be no later than five days thereafter.
LEDERER J.
Released: 20120306
JUDGMENT
COURT FILE NO.: CV-09-00382765
DATE: 20120306
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BRENT BIRD Plaintiff – and – PARMJIT MANGAT Defendant
JUDGMENT
LEDERER J.
Released: 20120306
Footnotes
[^1]: Exhibit 3, Schedule “A” , Documents of the Defendant, Tab 1, Renovation Contract, s. 1.2
[^2]: Exhibit 3, Schedule “A”, Documents of the Defendant , Tab 1, Renovation Contract, s. 4
[^3]: Exhibit 3, Schedule “A”, Documents of the Defendant ,,Tab 1, Renovation Contract , s. 5
[^4]: Exhibit 2, Brief of Invoices and Payments , Tab 1A, Invoice 3
[^5]: Exhibit 3, Schedule “A”, Documents of the Defendant, Tab 1, Renovation Contract, s. 1.5