ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-410818
DATE: March 8, 2012

BETWEEN:

JORCEL CONSTRUCTION LTD.

M. Handler, for the plaintiff Fax: 905-265-2235

Plaintiff (Defendant by counterclaim)

• and -

DANIEL CHARLES VINET

M. Mostyn, for the defendant Fax: 416-504-2628

Defendant (Plaintiff by counterclaim)

HEARD: February 14, 15 and 16, 2012

Master C. Albert

[ 1 ] This home renovation case is about what happens when unrealistic expectations and inflexibility prevail over common sense.

[ 2 ] Daniel Vinet, a realtor who lives in a modest home with his elderly dog, hired Jorcel Construction Ltd. to renovate his home at 47 Southdale Drive, Toronto. Jorcel, a small family business, claims that Mr. Vinet owes $41,820.95 [1] for materials and services supplied for contract work plus extras, after crediting completion costs. Mr. Vinet claims $29,000.00 for deficiencies, completion costs and other items, including daycare for his dog.

[ 3 ] The issues are:

a) What are the terms of the contract? What work is included in the price? Did they agree to any extras?

b) Did the parties agree to a fixed completion date?

c) Did one of the parties breach the contract?

d) Was Jorcel’s work deficient or incomplete? If so, what amount is Mr. Vinet entitled to receive by way of set-off or counterclaim for completion costs?

[ 4 ] Consistent with reference rule 55.01 the court directed the parties to conduct a simplified trial with evidence in chief submitted by affidavit and time limited oral cross-examinations.

I. The witnesses and credibility

[ 5 ] In most cases the factual contest presents itself in shades of gray. In this case there were sharp contrasts in the factual assertions of the parties and in the credibility of key witnesses. The plaintiff’s witnesses were candid and consistent. They were good historians. Their evidence withstood cross-examination. The defendant’s witnesses gave evidence that was vague and misleading. On several occasions they admitted that their affidavit evidence and oral assertions were wrong.

[ 6 ] Jorcel’s main witness, Jeffrey Leal, presented his evidence in chief in a lengthy and detailed affidavit. He was cross-examined at trial. Jeffrey Leal is an impressive young man who has worked in his father’s family business for eight years, helping with the administration of the business as well as the physical labour. As a witness he is articulate, candid and logical. He was very careful to recount what happened without exaggeration. He admitted facts adverse to his interest without hesitation. He was forthcoming and helpful. His explanations were reasonable. I find Jeffrey Leal to be a very honest and credible witness. His evidence withstood cross-examination intact.

[ 7 ] Jorge Leal, the patriarch and owner of Jorcel, corroborated the evidence of his son. He was straightforward and direct. His evidence in chief was not discredited under cross-examination. I find him to be a credible and reliable witness.

[ 8 ] Celia Leal, Jorge’s wife and Jeffrey’s mother, works in the family business as office administrator. She attests to taking the photographs submitted in evidence by Jorcel. She, too, was a straightforward and credible witness. Her evidence helps to pinpoint the work that Jorcel carried out on August 30, 2010, a critical date in this trial.

[ 9 ] Diamantino Machado, Jorcel’s plumbing subcontractor, submitted his evidence by affidavit. The defendant withdrew his request to cross-examine this witness.

[ 10 ] Frank Janeco is a licenced electrician who subcontracted to Jorcel for this job. He provided affidavit evidence and was summonsed to be cross-examined at trial. He gave his evidence in a forthright and credible manner. I find him to be a reliable witness.

[ 11 ] Mr. Vinet, the defendant’s main witness, presented his evidence in chief in a lengthy and detailed affidavit. He was cross-examined at trial. He was the opposite of candid. His evidence was evasive. He told partial truths. He distorted facts. His evidence was misleading. Several times he was caught in bald and outright untruths. Mr. Vinet is not a reliable witness.

[ 12 ] Examples of evidence that discredits Mr. Vinet’s reliability as a witness are:

a) He deposes at paragraph 22 of his affidavit: “Jorcel did not tell me that I had to clear out my basement prior to renovations”. This evidence is contradicted by Jeffrey Leals evidence including an email dated May 15, 2010 from Jeffrey Leal that states that Jorcel would like the basement “pretty much empty”. For Mr. Vinet to state that Jorcel did not tell him to remove his furniture and furnishings from the basement is not true. Mr. Vinet expects the court to believe that in a basement renovation that includes demolition and lowering the floor the labourers could work around his furniture and furnishings, simply moving his belongings from side to side as the work progressed. The renovation was extensive. It is not reasonable to expect labourers to work around and protect the integrity of furniture and furnishings while demolishing walls, lowering the floor, erecting new walls and carrying out other major renovations. Exacerbating Mr. Vinet’s incredible evidence on this point is that rather than gratefully accept Jorcels generous offer to provide the labour to remove his belongings at no extra cost and take them to a storage facility down the street, Mr. Vinet asks the court to hold Jorcel liable to pay the off-site storage fee for the duration of the renovation.

It was only under cross-examination that Mr. Vinet admitted that he is liable for the storage fee and that he has not reimbursed Jorcel for it.

... (case text continues exactly as in the source, unchanged) ...

Master C. Albert .

Released: March 8, 2012