COURT FILE NO.: 10-49675
DATE: 2012/11/22
SUPERIOR COURT OF JUSTICE – ONTARIO
In the matter of the Construction Lien Act, R.S.O. 1990, c. C.30 as amended
RE: Exteriors By Design, Plaintiff
AND:
Mark Traversy and Stephanie Traversy, Defendants
BEFORE: Master MacLeod
COUNSEL: Christopher Spiteri, for the Plaintiff
Mark Traversy in person
HEARD: November 22, 2012.
ENDORSEMENT
1] Further to my reasons for judgment released on November 8th, 2012 (2012 ONSC 6369) Mr. Spiteri had requested an opportunity to speak to costs as he submitted there were offers to settle and other matters he wished to draw to my attention.
2] He also wished to address the outstanding motion made at the opening of trial to show the plaintiff as Exteriors By Design Inc.
3] Mr. Traversy also requested an opportunity to speak to an engineer’s report he believed had been lost from the court file.
4] In response to these requests I convened a hearing on November 22, 2012.
5] At the opening of the hearing Mr. Boire was in attendance as he remains the lawyer of record for the defendants but he indicated to the court that he was no longer retained in connection with this matter. Mr. Traversy confirmed this to be the case and advised the court that he wished to proceed to represent himself. Mr. Traversy also indicated he was authorized to act as agent for Stephanie Traversy who was not present.
Costs
6] Dealing firstly with the question of costs, there are three issues which Mr. Spiteri submits should lead to a different costs disposition than that set out in my reasons. It is appropriate to hear the parties on the question of costs because costs were not specifically argued at the hearing although copies of the costs outlines were submitted in sealed envelopes. The issues which were not addressed at the hearing include the costs of a motion on July 13, 2012 which were reserved to trial; offers to settle; and, conduct of the defendants.
7] There were many offers about resolving the landscaping and windows issues. Several of these took place before litigation was commenced and were in evidence at the hearing. Indeed it was the negotiation between the parties when the defendants paid for the landscaping which led me to conclude that the plaintiff had acknowledged there should be certain landscaping credits notwithstanding payment in full.
8] There was a formal Rule 49 offer dated January 7, 2011 and though I had not seen the actual document, I was aware that there had been an offer to repair the windows deficiencies and to install a drain if the defendants paid the balance of $12,325.08 into trust. Though that offer had been formalized, it is obvious that the decision is not more favourable to the plaintiff than the offer so the entitlement to substantial indemnity costs is not triggered.
9] Mr. Traversy drew my attention to a mediation that had been conducted by the Better Business Bureau. Apparently this took place after the lien was registered but before the action was commenced. Both parties had agreed to walk away from the litigation but that was subject to legal advice and reflection. Following the mediation Mr. Spiteri advised the defendants that his client would be proceeding to enforce the lien. The defendants then took legal advice and launched the counterclaim.
10] Mr. Spiteri put material before the court to show that the dispute had become highly personalized and that Mr. Traversy had posted potentially defamatory communication on the internet. He argued that this showed the defendants had generally been intractable and difficult and indeed that they had attempted to subvert the court process. It was also suggested that Mr. Traversy had somehow behaved improperly by communicating with the trustee in bankruptcy and delivering a copy of the bankruptcy assignment to the court.
11] I am not prepared to deal with the alleged acts of defamation. If the defendants defame the plaintiff or Mr. Langille or Mr. Spiteri or anyone else for that matter then there are remedies available.
12] In regard to the pre-litigation negotiations and the other attempts at resolution, I am unable to conclude on the record that it was only the defendants that were intractable. In fact Mr. Langille’s position that he would attend to any deficiencies as warranty claims providing he was paid in full shows no more willingness to compromise than the position of the defendants that they would not pay until all deficiencies were rectified to their satisfaction.
13] In summary there is nothing in either the formal offer, the negotiations or the conduct of the parties which was not in a general way dealt with in evidence. In any event I am not persuaded by these submissions that the disposition of costs of the reference should be amended.
14] There is however the question of the costs of the motion. This was a motion brought by Mr. Boire on behalf of the defendants to amend their pleadings to add allegations of fraud and to allege that Mr. Langille took advantage of Mr. Traversy’s disability. This motion was brought on the eve of trial and it was dismissed as being prejudicial to the plaintiff while adding nothing to the defendant’s counterclaim or defence. The proposed amendments did not seek to show additional damages so the central issue of whether the defendants did or did not receive what they had contracted for would not have been changed. I reserved the question of costs to be disposed of following the trial.
15] The plaintiff is entitled to costs of the motion. I fix those costs at $850.00.
The name of the plaintiff
16] The plaintiff asserts that the proper name of the plaintiff is Exteriors By Design Inc. This is Mr. Langille’s corporation that is now in bankruptcy. As stated in my earlier reasons all of the documents show “Exteriors By Design” and contain no reference to the fact that it is a corporate entity. Mr. Traversy is not prepared to consent to alter the title of the proceedings as he is unclear what impact that might have on him. In my view there is no reason to grant the order at this time.
17] No issue was raised by the defendants or their counsel concerning the right of the plaintiff to proceed with this action without leave. Accordingly it would be unjust to allow that to be argued after the fact. Leave is therefore granted nunc pro tunc for Exteriors By Design to proceed with this action under that name. This is the name set out in the contracts and is the entity to whom cheques were issued.
18] Had the defendants obtained judgment against the plaintiff it might have been necessary to determine whether or not the judgment should be enforceable against Mr. Langille personally or whether he was protected by limited liability. That however is not the situation. There is no question as between Mr. Langille and the trustee in bankruptcy that a judgment in favour of Exteriors By Design is a judgment in favour of the trustee in bankruptcy. Thus the judgment will be assigned to the trustee in any event.
19] Accordingly there is no purpose to be served at this point by hearing evidence and argument on this issue. Subsequently however if my decision is overturned on a motion to oppose confirmation or this becomes an impediment to enforcement the question may have to be decided. Accordingly the motion made orally at the opening of trial is adjourned to be brought back on if necessary and in an appropriate forum.
The engineer’s report
20] Mr. Traversy asked that I receive a report prepared by Fred Hatam, P. Eng. as he was concerned this had inadvertently not been before the court during the reference. In fact he was mistaken. The report was at tab 7 of the affidavit in exhibit 2. Mr. Traversy could not locate that in the court file when he recently inspected it because the exhibits are still with me.
21] I did not specifically refer to this document in my reasons as it is not my practice to list every individual piece of evidence put before the court and to assign it weight. The report in question was attached to an affidavit of Mr. Traversy and is referred to in paragraph 15 of that affidavit which states that Fred Hatam was retained to look at the windows and landscaping and “he confirmed that the windows were too small thereby creating gaps that caused leaks ...” Mr. Hatam did not give evidence. The report is therefore hearsay and the weight to be given to it is that it corroborates the evidence of Mr. Traversy and Mr. Clare that the windows as ordered were smaller than the windows they replaced.
22] Mr. Traversy believing I had not seen this document put great weight on paragraph 10 of the report which states “Area of the interlock in the pool area is around 1020 Sq. feet, this was supposed to be 1055 Sq. feet as per the contract.” I was aware of that observation in the report but did not give it any weight. Besides the fact that Mr. Hatam did not give evidence, the report does not indicate how the area of interlock was measured or calculated and is in error when it refers to the 1055 as that is not the amount covered by the contract. In any event there is nothing in the submissions made by Mr. Traversy which would justify admission of additional evidence or to reopen the arguments made at the conclusion of trial.
Conclusion
23] As set out above the only change to the disposition set out in the earlier reasons will be to add the costs award for the motion to the judgment against the defendants. Mr. Spiteri should therefore proceed with preparing a draft report for my signature. A precedent for a report may be obtained from my office.
Master C. MacLeod
Date: November 22, 2012