ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-417326
DATE: September 6, 2012

BETWEEN:

LIDO CABINET LIMITED

F. Battiston, for the plaintiff (defendant by counterclaim) Fax: 416-630-7472

Plaintiff
(defendant by counterclaim)

• and -

STEFANIA JOY and DAVID JOY

M. Hassell, for the defendants (plaintiffs by counterclaim) Fax: 416-342-1776

Defendants
(plaintiffs by counterclaim)

HEARD: September 5, 2012

Master C. Albert

[ 1 ] Lido Cabinet Limited (“Lido”) designed and installed custom kitchen cabinetry in David and Stefania Joy’s Rosedale home. Lido claims $11,164.75 as the unpaid balance of the contract price. The Joys counterclaim for $25,000.00 for deficiencies in the design and installation of their new kitchen.

[ 2 ] The issues are:

a) What is the balance owing on the contract?

b) Are the Joys entitled to set-off and recover damages for deficiencies?

c) Did Lido register its construction lien in time?

[ 3 ] The reference rule and the Construction Lien Act provides a framework for the court to adopt as summary a procedure as is suitable to meet the needs of the case, taking into account the amounts in issue. In other words, the court must do its best to apply principles of proportionality to the process of adjudicating disputes. For that reason the trial was conducted as a summary trial with evidence in chief by affidavit and time limited cross-examination.

[ 4 ] Each side submitted affidavit evidence of one witness: Silvana Bruno, general manager for Lido, and David Joy, spouse of the homeowner. They were cross-examined at trial.

[ 5 ] Disputes such as this one are unfortunate. Whereas the parties may have been able to find a mutually acceptable solution had they communicated effectively in late 2010, the passage of time has only caused them to dig in their heels further and become more entrenched in their positions. This is particularly so on the part of David Joy, who gave his testimony in a self-righteous manner, answering questions put to him in cross-examination with non-responsive speeches on topics of greater interest to him, thereby undermining his credibility.

[ 6 ] Ms Bruno’s evidence on cross-examination was delivered in a straightforward and direct manner. She answered the questions asked and admitted facts that were not necessarily helpful to her case. I found her to be a credible witness.

a) Balance owing on the contract

[ 7 ] The parties entered into a written contract on or about July 16, 2010 for $16,000.00 plus taxes for a total of $18,080. For this price Lido was to supply and install kitchen cabinetry as per specifications and drawings. The Joys were to provide their own appliances (new and used from their previous home) and provide the appliance specifications to Lido. The contract did not include a countertop and the Joys contracted directly with a granite supplier for the countertop.

[ 8 ] The Joys paid Lido a deposit of $7,000.00 but have not paid anything more, leaving a balance owing of $11,080.00 on the contract price, provided Lido performed the contract according to its terms.

[ 9 ] Lido claims an extra of $75.00 plus tax for a total of $84.75 for an extra door, which they incorrectly described in their invoice as a “door for garberator” but in fact was a front panel for a trash compactor cabinet. Their total claim is for $11,164.75.

[ 10 ] Lido supplied and installed all of the cabinetry that was required for the kitchen. They also supplied the trash compactor cabinet front.

[ 11 ] Based on the contract price, the additional trash compactor door, the invoices issued and the deposit paid, I find that the balance owing on the contract is $11,080.00 plus the extra of $84.75 for a total of $11,164.75 payable by the Joys to Lido subject to the Joy’s claim for set-off and counterclaim for damages.

b) Deficiencies

[ 12 ] The Joys listed their complaints about their kitchen cabinetry in the Scott Schedule. They did not notify Lido about their complaints until after installation was complete.

1. Base cabinets ($10,000.00 counterclaim)

[ 13 ] Symmetrical design was very important to the Joys and Ms Bruno knew this. They had relocated an exterior window so that it would be centered over their new sink. One of the Joys’ complaints is that the area of the kitchen cabinetry around the kitchen sink was not perfectly symmetrical and, as a result, all of the base cabinets would have to be removed, redesigned, re-manufactured and reinstalled.

[ 14 ] The complaint about symmetry is that the lower cabinets to the right and left of the sink are not of the same depth. The dishwasher protrudes out farther than the Joys expected it to. They blame it on poor design, accusing Lido of designing and building cabinet boxes that are too shallow. To the left of the sink is a cabinet box containing two large drawers. To the right of the sink is a dishwasher with drawer-like front panels to be affixed to its door to mirror the drawer fronts on the other side of the sink.

[ 15 ] In Lido’s design plans the dishwasher was supposed to be on the left and the drawers on the right. It was the Joys’ decision to relocate it to the other side, without first consulting with Lido. Ms Bruno expressed concern that in doing so there may have been an obstruction preventing the dishwasher from being pushed back to the rear wall of the cabinet box.

[ 16 ] After installing the dishwasher the Joys did not allow Lido entry to inspect the installation to see whether there were any obstructions (such as plumbing pipes) behind the dishwasher on the side on which it had been installed, preventing it from being pushed back further into the lower cabinet. Mr. Joy’s evidence is that there are no plumbing or other pipes or obstructions at the back of the space into which the dishwasher was placed.

[ 17 ] Ms Bruno’s response is that the cabinet boxes were built to accommodate the dishwasher specifications that Mr. Joy provided to her. The specifications for the dishwasher show a depth of 21 inches required for the dishwasher “box”, an overall depth of 24 ½ inches including the dishwasher door and a depth of 25 ¼ inches including the door and the control panel.

[ 18 ] The dishwasher specifications that had been provided to Ms Bruno were filed as exhibit 1, tab 30 at trial. Ms Bruno asserts that the dishwasher that the Joys actually installed is not the same dishwasher as the one in the specifications. Mr. Joy’s evidence is that the dishwasher installed is the same as the “panel ready” model shown in these specifications. I accept and find as a fact that the Joys installed the same dishwasher as the one for which they provided specifications to Lido.

[ 19 ] The problem with the “as built” cabinetry appears to be one of miscommunication. According to Ms Bruno, cabinetry is always designed in such as way as to hide the box of the dishwasher inside the cabinetry, with the front face of the dishwasher protruding so that when the dishwasher is opened the steam that escapes does not damage the cabinetry. Mr. Joy’s position is that the entire dishwasher, including the front panel, should have been recessed below the countertop and set back from the protruding sink so that it does not extend beyond the cabinetry. He had expected that it would be recessed into the cabinetry to the same extent as the drawers are recessed on the other side of the sink, thus providing the symmetry for which they were striving. The contract is silent on the issue and the design does not provide a level of detail sufficient to address the setback of the dishwasher.

[ 20 ] I find that Ms Bruno is partially at fault for not communicating clearly to the Joys that while the cabinetry would be symmetrical from most perspectives (looking at it directly and from above), it would not be symmetrical for depth if the Joys wanted the sink to be set forward with a recessed drawer bank beside it.

[ 21 ] However, this absence of clear warning by Ms Bruno is not fatal to Lido’s entitlement to payment for their work. There is no evidence that the dishwasher was installed in other than a proper and worker like manner, fit for its purpose. In redirect examination Mr. Joy introduced for the first time that in his household dishes are washed by the housekeeper by hand because the dishwasher is not functioning. If this were so then this very important fact would have been communicated to Lido much earlier than partway through trial. There is no mention in any documents, productions, letters, affidavits or the Scott Schedule that the dishwasher does not function because of its placement. I do not find Mr Joy’s statement that the dishwasher is not functioning credible. Given the timing of his statement it discredits his reliability as a witness.

[ 22 ] Mr. Joy stated repeatedly that he is a builder and developer. If symmetry in the cabinet depth was such a crucial issue for the Joys it ought to have been specified in the contract. It was not. The Joys are not new to renovations, nor are they new to building.

[ 23 ] The Joys’ complaint about the base cabinets also concerns the area adjacent to the Viking range. They claim that the cabinetry must be replaced because the counter is too high and interferes with the burners, posing a fire hazard. They attribute the improper height to the granite countertops, discussed under the next subheading.

[ 24 ] The next area of complaint regarding the base cabinets concerns the trash compactor cabinet front. The Joys complain that the front panel does not fit properly, again justifying ripping out all of the base cabinetry and having new cabinetry manufactured and installed. My concern over this item is that they failed to mitigate by preventing Lido from returning to effect minor adjustments and repairs, which is standard in cabinetry installation jobs.

[ 25 ] I find that the Joys have failed to meet the onus of proving that these complaints relating to the base cabinets are significant design and manufacturing flaws for which Lido is responsible. I find that the Joys are not entitled to any set-off or damages for the base cabinets.

[ 26 ] Had I found that the Joys are entitled to compensation for the base cabinets I would have found that they had failed to prove damages. The only quantification provided is the evidence of Mr. Joy who deposes that the repair is worth $10,000.00. He arrives at this figure not based on any actual or independent evidence but rather by calculating 60 per cent of the Lido contract price. There is no evidence to support the percentage of the Lido contract that applies to the base cabinets in the area of the sink and dishwasher.

[ 27 ] In almost two years the Joys have taken no steps to effect the repairs about which they complain. They have not obtained quotes from independent contractors, nor have they undertaken any repairs for which they could provide evidence of payment. I find that the evidence of quantum relied on by the Joys is not reliable.

[ 28 ] Built into their quantification of damages for this and other items, according to Mr. Joy, is the impact on property value of their Rosedale home. Mr. Joy asserts that the kitchen does not measure up to what is expected in a Rosedale home and on that basis the Joys are entitled to damages. He has not provided any evidence of property value or change in property value as a result of the Lido kitchen installed in their Rosedale home. I reject a decline in property value as a basis for damages in this case.

[ 29 ] For all of these reasons I disallow the counterclaim for base cabinets.

2. Granite Countertops ($5,000.00 counterclaim)

[ 30 ] The Joys claim set-off and damages for a granite countertop that they allege was installed improperly. They claim that it was improper to place a layer of plywood on top of the lower cabinets and the granite countertop on top of the plywood. They complain because they say it is unsightly and also because it raises the countertop so that it is too high. They also claim that adjacent to the Viking stove the plywood creates a fire hazard.

[ 31 ] Lido did not supply the granite countertop. Ms Bruno gave the Joys the name of a granite contractor, Granito, with whom she had worked in the past. Lido did not receive a commission or a referral fee and the Joys were under no obligation to use Granito. They chose to do so and contracted directly with Granito for the granite countertops.

[ 32 ] The photograph filed as exhibit 1, tab 27 shows that before Granito installed the granite countertop its height in relation to the adjacent stove was obvious. Mr. Joy admits that Lido did not install the plywood. He testified that he was present on the day that the photograph was taken and saw the Joys’ workers (they were doing other renovations in the house) and the granite contractor bringing plywood from the next room into the kitchen and placing it on top of the lower cabinets.

[ 33 ] The photograph shows that measurements by laser were being taken on the day of the photograph. Mr. Joy’s evidence is that the granite contractor was taking measurements after the main installation of cabinetry by Lido. It is obvious that this photograph was taken before the granite countertops were placed. As a builder and developer, and as the party selecting the thickness of granite to be used for the countertop, Mr. Joy would have known at that time what the final height of the countertop would be. If he and his wife were dissatisfied with the height of the countertop they had an opportunity to raise the concern and try to find a solution before having Granito install the granite countertop.

[ 34 ] The Joys’ position is that the only way to rectify the deficiency is to remove the granite countertop, which they claim will destroy the cabinetry, the sink, and other parts of the kitchen. Lido’s position is that Granito could lift the countertop, allowing Lido to pull the cabinets forward by two inches, and then Granito could reinstall or replace the granite counter. According to Ms Bruno’s evidence the Joys refused to consider Lido’s offer to this effect, made together with Granito. Granito even offered to replace the granite countertop if it broke in the exercise.

[ 35 ] I find that the Joys failed to reasonably mitigate their claim. They are holding Lido to a standard of perfection, but they did not contract for perfection. They contracted with Lido for high quality cabinetry manufactured and installed according to the approved design. From the photographs it appears to me that Lido supplied a beautifully designed and manufactured, high quality kitchen.

[ 36 ] I find that the deficiency, if any, in the height of the granite countertop is not Lido’s responsibility. Granito and the Joys, not Lido, affixed the plywood to the base cabinets. Granito is a direct contractor with the Joys and not a subcontractor of Lido. The Joys were under no obligation to use Granito as their granite contractor.

[ 37 ] The Joys argue that Lido and Granito are jointly and severally liable for the overall deficiency and costs arising from the improper granite countertop. They claim that Lido is liable because they designed lower cabinets that are too shallow and that Granito is liable because they improperly installed plywood on top of the base cabinets before installing the granite, thereby raising it to a height that is too high.

[ 38 ] Having found that there is no deficiency in the base cabinets, it follows that Lido did not provide erroneous measurements to Granito. In any event, before manufacturing the granite countertops Granito attended on site to take measurements from the “as built” cabinets. Mr. Joy was present. I find that the Joys have not met their onus of proving that Lido is liable to them for any deficiency in the granite countertops supplied by Granito.

[ 39 ] The Joys also complain that the plywood layer placed on top of the base cabinetry under the granite is unsightly. They claim that it is visible from the front door and that it detracts from their expectation as to the aesthetic beauty of the kitchen that they wanted. They provided photographs of the plywood underneath the granite, filed as exhibit 4, tabs 4 and 10. The photographs were taken from underneath the lower cabinets – most likely from someone who must have been just about lying on the floor looking up to the underside of the cabinets, as might be the view of an infant or toddler. The photographs taken straight on or from the vantage point of a person of ordinary height do not show any unsightly plywood, as is clear from the photographs at exhibit 3, tabs 3, 5, 6, 7, 8, 9 and 16. There were no photographs taken from the front door showing that the plywood was visible, as stated by Mr. Joy in evidence.

[ 40 ] I conclude that the plywood is not readily visible from the normal vantage point of a person of ordinary height walking into the house or standing in the kitchen. Rather, the plywood is underneath and hidden by the granite countertop. The unsightliness complained of would only be apparent to a toddler and is only visible from underneath, looking up at the underside of the countertop where it meets the cabinetry. No independent evidence was supplied to the effect that such an installation is other than industry standard.

[ 41 ] I find that the photographs relied on by the Joys in an effort to prove this element of their counterclaim are misleading and fail to fairly depict the situation. Submitting these photographs in evidence and relying on them discredits the Joys’ evidence.

[ 42 ] As to joint and several liability of Lido and Granito, if Lido is not liable for deficient cabinetry (a finding that I have already made) then it follows that they are not liable for Granito’s installation of the granite on top of that cabinetry. The Joys received Lido’s design specifications at the beginning of the job, including cabinet heights. Mr. Joy declared in evidence on several occasions that he is a builder and developer. As such I draw the inference that he is capable of reading and understanding design drawings and specifications. The Joys selected the thickness of granite to install on top of the base cabinets. Mr. Joy was capable of calculating the exact height that would result by affixing granite at the thickness they chose on top of the cabinets.

[ 43 ] The Joys’ problem with the granite counter arises from the installation by Granito and the Joys’ own worker of a plywood base on top of the base cabinets, under the granite. Lido did not install the plywood nor did its design deal with what was to be affixed on top of the base cabinets.

[ 44 ] I find that Lido is not liable to the Joys for the Joys’ complaint about the granite countertops, including the installation of the granite countertop and the plywood underneath it.

[ 45 ] Had I found Lido liable for this deficiency claim then I would have considered the quantification of damages relied on by the Joys. They claim $5,000.00 as the price they paid to Granito for the granite countertops. However, I am not satisfied that they have proven that all of the granite countertops throughout the kitchen would have to be replaced. Nor have they proven whether some or all of the existing countertop could be saved and reused. Had I found liability I would have quantified the deficiency at $2,500.00, based on replacing the countertop in only half of the kitchen where it was supplied.

[ 46 ] However, as liability has not been proven, the Joys’ claim against Lido regarding the granite countertop is refused.

3. Kitchen redesign drawings ($1,500 counterclaim)

[ 47 ] The basis of this claim is that the drawings must be redone to correct specifications. Not having proven the need to redo the cabinetry this claim fails.

[ 48 ] Had the claim been allowed I would have found that damages claimed have not been proven. There is no independent evidence as to the cost of redesigning the cabinetry. The Joys have not contracted with a designer or obtained any quotes. The claim is refused.

4. Sink ($1,400.00 counterclaim)

[ 49 ] The basis of the claim of $1,400.00 for a sink is that the sink will be destroyed when the countertop is removed. Having found that Lido is not liable for the countertop, it follows that Lido is not liable to replace the sink.

[ 50 ] The quantification relied on by the Joys includes the cost of a plumber but there is no evidence to support the cost of the sink or a plumber. Had liability been found recovery would have been denied on the basis of lack of evidence.

5. Marble Backsplash ($2,000.00 counterclaim)

[ 51 ] The Joys claim $2,000.00 for the backsplash which they claim will be destroyed when the countertop is removed. They also claim that if the countertop is lowered to the proper height then they will require additional backsplash tiles. The quantum of the claim is based on Mr. Joy’s estimate, unsupported by any quotations, documents or invoices.

[ 52 ] The claim is disallowed for several reasons. First, as already found, Lido is not liable to replace the countertop. Second, the issue as to the countertop was obvious to Mr. Joy, or ought to have been obvious to him if it is a genuine concern, at the time the granite measurements were being taken, after the plywood was installed. As an experienced builder he should not have proceeded to have the granite countertop and tile backsplash installed before resolving the concern over the height and depth of the countertop. In going forward and completing the granite and backsplash not only did the Joys fail to mitigate, they actually caused damages to escalate.

[ 53 ] An undercurrent throughout the trial is the concern as to whether the Joys’ complaints are genuine. When asked whether the kitchen was functional at the time it was completed and today Mr. Joy responded that it was not. He explained the reason that it was not entirely functional was because it was not aesthetically pleasing to his wife, who is the title owner of the home. Mr. Joy testified that the kitchen is not fully functional to “an Italian woman” (referring to his wife) to whom her kitchen “is her whole life”. He testified that the functionality and design of the kitchen are inconsistent with his wife’s needs to have a kitchen that is aesthetically pleasing. If that is the case the best evidence would have been that of Mrs. Joy. I find it significant that Mrs. Joy failed to give evidence, leaving it to her husband to testify on her behalf. No explanation was given as to why she did not testify.

6. Hardwood flooring ($2,000.00 counterclaim)

[ 54 ] The Joys describe their claim for $2,000.00 for hardwood flooring as based on a reduction in the kitchen floor area if deeper counters are installed to replace the base cabinets. Having found no liability on Lido’s part to install deeper base cabinets, the claim must fail. Furthermore, the Joys provided no evidence of probative value to support the monetary claim.

7. Minor deficiencies to upper cabinetry ($1,000.00 counterclaim)

[ 55 ] The Joys complain about minor touch up work and deficiencies that require correction. As Ms Bruno testified, every cabinetry installation requires minor adjustments and repairs after it is completed. This includes items such as caulking around crown molding, tightening cabinet screws and similar items. The need arises because drywall and other components of new construction shift after installation, requiring minor adjustments to the cabinetry.

[ 56 ] In the case of the Joys, they would not permit Lido to attend on site to inspect the work and effect any of these minor repairs and adjustments. Mr. Joy testified that Lido would not return unless the Joys paid the outstanding account but Ms Bruno stated in evidence that Lido was ready and willing to perform the minor necessary repairs and was not permitted entry to inspect and carry out these minor items.

[ 57 ] Faced with this contradictory evidence I prefer the evidence of Ms Bruno over that of Mr. Joy, having found that she is a more credible witness, for reasons already stated.

[ 58 ] On the claim for $1,000.00 for minor deficiencies and adjustments I find that the Joys are not entitled to recover this amount because they failed to mitigate by refusing to allow Lido to return to inspect and carry out these minor adjustments and repairs. The claim is refused.

8. Remove and dispose of cabinets ($1,500.00 counterclaim)

[ 59 ] Having found that Lido is not liable to replace the base cabinets or granite countertops, they are also not liable to dispose of these materials. The counterclaim for removal and disposal costs is refused. Had I found liability the claim would have been refused for lack of evidence of quantification. No quotes or invoices were provided to support the claim.

c) Timeliness of the lien

[ 60 ] Lido is a contractor within the meaning of that term as defined in the Construction Lien Act. The Act provides at section 31(2)(b) that a contractor’s lien must be preserved by registering a lien within 45 days after the date the contract is completed or abandoned. The lien must be perfected by registering a certificate of action within 90 days after the date the contract is completed or abandoned. If a contractor fails to meet these limitation periods the lien rights expire.

[ 61 ] Lido registered its claim for lien on November 25, 2010 as instrument AT2559911 and its certificate of action on December 30, 2010 as instrument AT2589134.

[ 62 ] The Joys challenge the timeliness of the work, claiming that the contract was completed on October 6, 2010, more than 45 days prior to the date the lien was registered. They acknowledge that Lido’s installer attended at the site on October 12, 2010 for three hours to complete a few items of installation, but claim that the work he did that day was so trivial that it did not extend the October 6, 2010 completion date. They also rely on October 6, 2010 as the date of completion because Lido sent its last two invoices on that date.

[ 63 ] Lido asserts that the work performed on October12, 2010 was sufficiently substantial as to constitute the last of the contract work within the meaning of section 31(2)(b), constituting the completion date. If the contract work was in fact completed on October 12, 2010 then Lido’s lien was preserved and perfected in time.

[ 64 ] It is clear from the case law that repairs and rectification of deficiencies cannot revive lien rights that have expired. The work that Lido’s installer, Mr. Mohammed, did on October 12, 2010 was not repair work or rectification of deficiencies. It was original work, installing the remaining cabinetry pieces and hardware.

[ 65 ] Pursuant to the Act a contract is deemed to be completed when the price of completion or last supply is not more than one percent of the contract price or $1,000.00, whichever is less. The contract price in this case is $16,000.00 plus taxes. I do not include the amount that the government extracts for taxes as part of the contract price as between Lido and the Joys. One percent of the contract price is $160.00. If the installer supplied at least $160.00 worth of services and materials on October 12, 2010 then Lido meets the threshold and the completion date is October 12, 2010. Otherwise it does not.

[ 66 ] Ms Bruno gave evidence in redirect examination that Lido paid the installer $450.00 in cash for his work on October 12, 2010. Lido provided no receipts, nor did they provide this evidence of payment in chief in Ms Bruno’s affidavit or in any affidavit from Mr. Mohammed. A statement from the installer was filed as an exhibit, not in affidavit form, but it is silent as to payment. Based on the timing of this evidence and the absence of any corroboration I do not accept Lido’s evidence that it paid the installer $450.00 for the October 12, 2010 work.

[ 67 ] Mr. Joy’s evidence on this issue is that one percent should be calculated on a tax included basis. He responded to the assertion that the installer was paid $450.00, testifying that the installer spent no more than three hours at the site and could not be worth $150.00 per hour. He did not provide any evidence as to normal hourly rates of cabinet installers.

[ 68 ] Based on a contract price of $16,000.00 one percent is $160.00. The issue is whether there is sufficient evidence to establish that Lido’s installer supplied $160.00 worth of services and materials to the Joys’ project on October12, 2010. According to Ms Bruno the installer spent the better part of the day there. She has no direct knowledge. According to Mr. Joy the installer spent three hours on site. For reasons already given I find that Mr. Joy is prone to exaggerating his evidence to better his case. I find that the installer was on site for more than three hours but less than a full day. I draw the inference from the combined evidence that Mr. Mohammed supplied at least four hours of services on October 12, 2010. I also find that he was completing contract work as he was not effecting repairs or rectifying deficiencies.

[ 69 ] Cabinetry installation is skilled labour and while neither party provided any evidence of appropriate hourly rates for cabinetry installation contractors I am prepared to take judicial notice of such rates based on my experience of more than eight years as a Construction Lien Master in Toronto hearing construction lien trials such as this one. I am satisfied that the hourly rate of a skilled cabinet installer would be at least $40.00.

[ 70 ] Based on an hourly rate of at least $40.00 and a minimum of four hours worked on October 12, 2010, then even without supplying any materials that day, the threshold for completion on October 12, 2010 is met. The evidence satisfies me that Mr. Mohammed also supplied materials that day, bringing cabinetry hardware with him to the site, so that the value of the supply of materials and services on October 12, 2010 exceeded $160.00. On that basis I find that Lido carried out contract work on October 12, 2010 that constituted completion work. The date of completion of the Lido contract with the Joys was October 12, 2010.

[ 71 ] The Lido lien was preserved and perfected in time.

CONCLUSION

[ 72 ] The contract price is $16,000.00 plus HST of $2,080.00 plus an extra for the trash compactor cabinet door of $75.00 plus HST of $9.75 for a total price of $18,164.75. Lido invoiced and received payment of $7,000.00. Outstanding are invoice #0681 dated September 20, 2010 for $9,040.00 including HST, invoice #0699 dated October 6, 2010 for $2,040.00 including HST and invoice #0700 for $84.75 including HST.

[ 73 ] In conclusion I find that Stefania Joy and David Joy must pay to Lido the balance of the contract price of $11,164.75 plus prejudgment interest up to the date of this judgment and post judgment interest thereafter until paid.

[ 74 ] If the amount owing is not paid within 30 days after the report arising from this reference is confirmed then Lido is entitled to enforce its lien remedies against the property.

[ 75 ] Costs should follow the event, calculated on a partial indemnity scale. The plaintiff did not require counsel of 29 years experience and I have taken that into account in the fixed fee amount. Taking into account the factors prescribed by the rules and the Act, and in particular the amount in issue, the degree of success and proportionality, and for the same reasons in respect of proportionality as I gave in 1022423 Ontario Ltd. v Metcap Living , 2010 ONSC 1782 at paragraphs 20 and 21 , I fix costs at $8,636.27 made up of fees of $6,500.00 plus HST of $845.00 plus disbursements of $1,291.27 (including HST of $701.17).

Master C. Albert .

Released: September 6, 2012

COURT FILE NO.: CV-10-417326

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: LIDO CABINET LIMITED Plaintiff (defendant by counterclaim) - and - STEFANIA JOY and DAVID JOY Defendant (plaintiff by counterclaim)

REASONS FOR JUDGMENT

Master C. Albert

Released: September 6, 2012