COURT FILE NO.: 04-CV-264232

DATE: 20121217

ONTARIO

SUPERIOR COURT OF JUSTICE

In the Matter of the

Construction Lien Act, 1990, Chapter C.30

BETWEEN:

GTA STRUCTURAL STEEL LTD.

Patrick Di Monte, for the Plaintiff

Plaintiff

• and -

20 ASHTONBEE HOLDINGS LIMITED and HADY CONSTRUCTION (TORONTO) INC.

Michael Handler, for the Defendants

Defendants

HEARD: March 2, 6, 7, 8, 9, 13, 14, 15, 16 and 20, October 30 and 31, November 1, 2, 6, 7 and 8, 2007

Master Polika

[1] The plaintiff claimed the sum of $164,686.46, interest and costs and in default of payment of the amount claimed that all the estate and interest of the defendants in the lands and premises being 1120 Finch Avenue West, Toronto be sold and the proceeds be applied towards payment of the plaintiff’s claim including interest and costs. At the opening of the trial the claim was reduced to $159,686.46. The claim is based on an alleged agreement between the plaintiff and the defendant Hady Construction (Toronto) Inc. (“Hady”) for the supply of labour, supervision, equipment and the supply of structural steel to the improvement to the said lands and premises at a price of $356,986.46. In the alternative the plaintiff advances the same claim on the basis of quantum meruit.

[2] Hady denied the claim on the basis that the governing agreement between it and the plaintiff was a written agreement dated August 26, 2003 at a price of $248,500.00 which was increased only by $7,960.00, that the plaintiff breached the agreement in a number of ways and that as a consequence of uncompleted work and deficiencies and the breaches of the agreement no monies are owing to the plaintiff. In addition Hady claims a set off for costs incurred by it in dealing with the breaches. Hady also pleads that the claim for lien is exaggerated and that it was not preserved or perfected as required by the provisions of the Construction Lien Act, R.S.O. 1990 c. C.30 as amended.

[3] In addition Hady advanced a counterclaim for damages of $150,000.00 plus interest and costs. The damages are for the cost of completion of the plaintiff’s work and the rectification of deficiencies as well as expenses and costs based on the plaintiff’s alleged delay in completing its work. At trial on October 31, 2007 on consent Hady’s statement of defence and counterclaim was amended by adding paragraph 16(g) to include a claim for compensation paid to the owner.

[4] In defence to Hady’s counterclaim the plaintiff denied the counterclaim and plead that if any damages were suffered, which was not admitted, Hady failed to mitigate its damages. At trial on October 31, 2007 on consent the plaintiff’s statement of defense to the counterclaim was amended to respond to the added paragraph 16(g).

The Parties To The Action and The Improvement

[5] The defendant, 20 Ashtonbee Holdings Limited, is the owner of the lands and premise municipally known as 1920 Eglinton Avenue East, Toronto and in turn was a holding company for Madison Properties Inc. (collectively referred to as the “Owner”).

[6] The defendant Hady was the general contractor for the whole improvement which consisted of the renovation of two buildings, construction of a new addition to one of the buildings and construction of the parking area, roads and sidewalks surrounding the two buildings all located at 1920 Eglinton Avenue East at a price of approximately $3,900,000.00.

[7] The plaintiff was Hady’s subcontractor supplying, remediating and erecting structural steel for the improvement in the two buildings and the new addition. The plaintiff’s main business was that of a fabricator and manufacturer of steel. It in turn sub-subcontracted portions of its work under the subcontract with Hady.

Claim For Lien, Conduct of the Action and Reference Up To the Trial

[8] The plaintiff registered its claim for lien as Instrument Number AT401443 on February 3, 2004 against the lands and premises claiming the sum of $135,894.00 plus GST as well as interest[^1] and costs for services or materials supplied from July 22, 2003 to January 19, 2004 naming 20 Ashtonbee Holdings Limited as the owner and Hady as the person to whom the plaintiff supplied services and materials to.

[9] The plaintiff commenced its action by statement of claim on February 23, 2004, claiming payment of the sum of $164,686.46, interest, costs on a solicitor client basis and that in default of payment of the amount of the claim sale of the lands and premises with the proceeds to be applied towards the plaintiff’s claim, costs and interest pursuant to the Construction Lien Act.

[10] In court File No. 04-CV-263702 on February 16, 2004, Master Sandler, upon Hady posting security in court by way of letter of credit in the sum of $169,867.50, composed of $135,894.00 for the claim for lien and $33,973.50 for costs, made an order vacating the plaintiff’s claim for lien against the lands and premises.

[11] The defendant Hady delivered its statement of defence and counterclaim dated March 22, 2004 pleading that it entered into a written contract with the plaintiff dated August 26, 2003 for the supply and installation of structural steel to the improvement at an initial price of $248,500.00, subsequently increased by $7,960.00. Hady went on to plead that the supply under the contract was to be to the satisfaction of the owner of the project, it’s architect, it’s engineer and Hady, that time was of the essence under the contract, and that if the plaintiff failed to complete the installation in a timely way, Hady could give three days notice to take steps to expedite the work failing which Hady could cancel or terminate the contract and the plaintiff was bound to pay Hady’s costs to complete the work if the costs to complete exceeded the contract price, as well as other terms. Hady went on to plead that the plaintiff failed to complete the work in a timely and appropriate way within the written schedules it had committed to, that the plaintiff abandoned the work in January 2004, that it failed to pay its subcontractors resulting in claims for lien being registered by them, that its representatives submitted false statutory declarations that its subcontractor and material suppliers accounts had been paid, that the structural steel supplied by the plaintiff was not fit for its intended purpose, that the plaintiff failed to correct deficiencies in a timely and appropriate manner as well as other alleged failures by the plaintiff. Hady admitted making payments totaling $206,631.07. Hady also pleaded it incurred costs to resolve disputes with the plaintiff’s subcontractors and claimed a set-off of those costs. Hady also pleaded that the plaintiff’s claim for lien was not timely. Hady by way of counterclaim claims $150,000.00 to rectify and complete the plaintiff’s work. As part of the $150,000.00 claimed on October 31, 2007 paragraph 16 (g) was added to Hady’s statement of defence and counterclaim claiming compensation for the amount paid to the Owner to compensate the Owner for late delivery of the project and delay in making the project ready for tenant fixturing.

[12] The plaintiff delivered its Reply[^2] and Defence to Counterclaim, dated March 22, 2004, denying Hady’s allegations, pleading that Hady had not incurred damages as a consequence of the plaintiff’s actions and that Hady failed to mitigate its damages. It too was amended on October 31, 2007 to respond to Hady’s addition of paragraph 16 (g).

[13] By Notice of Discontinuance dated September 16, 2004, the plaintiff discontinued its action against the defendant, 20 Ashtonbee Holdings Limited.

[14] On consent on October 12, 2004, Mr. Justice Rivard, granted a judgment of reference in terms of Form 16[^3] referring the action for trial by way of reference before a master at Toronto.

[15] On November 1, 2004, Master Saunders, on motion brought by the plaintiff made an order fixing the trial of this action by way of first pre-trial for directions in the reference for 2:30 pm on April 14, 2005.

[16] I became seized of the reference on April 14, 2005 when it came before me by way of the first pre-trial for directions pursuant to the judgment of reference. I ordered the exchange of affidavits of documents and the exchange of a Scott Schedule. In addition, I granted leave to conduct examinations for discovery on the basis that they were to be completed by December 2, 2005. I also gave directions respecting the defendants pending motion for security for costs and adjourned the pre-trial to December 5, 2005.

[17] Hady’s motion for security for costs returnable on May 24, 2005 was adjourned in writing to June 13, 2005. On June 13, 2004 the motion was adjourned to August 16, 2005 at the plaintiff’s request as the plaintiff served a notice of change of solicitors just before court commenced. In addition I fixed costs wasted at $750.00 payable by the plaintiff within 30 days. I also set terms for the delivery of responding material and completion of cross-examinations, if any. On August 16, 2005 I heard the motion and reserved my decision.

[18] On November 21, 2005 I released my decision on Hady’s motion for security for costs ordering that the plaintiff post security in the amount of $5,000.00 by December 5, 2005 or by such additional time as may be allowed at the pre-trial on December 5, 2005. The order was made on a pay as you go basis on terms that after completion of discoveries a motion could be brought to increase or decrease the security ordered to be posted and that costs of the motion failing a settlement between the parties be addressed at the pre-trial on December 5, 2005.

[19] At the pre-trial on December 5, 2005, I extended the time for posting security for costs to December 12, 2006 and fixed costs of the motion at $1,605.00 inclusive of GST payable within 30 days. Both parties were in breach of my prior orders in that the plaintiff had not delivered its affidavit of documents, the defendant’s Scott Schedule was delivered late, the plaintiff had not yet responded to the defendant’s Scott Schedule, discoveries had not taken place and neither party made any effort to vary my order of April 14, 2005 before the breaches occurred. In the result, notwithstanding the security for costs order, I extended the time for completion of the outstanding steps and ordered that the costs of preparing for and attending the pre-trial on April 14, 2005 would not accrue to the plaintiff in any event of the cause. The pre-trial was adjourned to February 28, 2006.

[20] The pre-trial resumed before me on February 28, 2006, but plaintiff’s counsel failed to appear. I was advised that security for costs was posted, that the exchange of affidavits of documents and Scott Schedules was complete, and that the examinations for discovery were held but were not complete with the plaintiff’s representative giving numerous undertakings. I made the following orders: undertakings given to date to be answered by April20, 2006, discoveries to be completed by May 31, 2006 and costs of the day payable by plaintiff to defendant as fixed at the next pre-trial within 30 days. The pre-trial was further adjourned to June 19, 2006.

[21] On June 19, 2006, the pre-trial resumed. I found that the plaintiff’s actions resulted in another adjournment of the pre-trial to accommodate examinations for discovery which were delayed by the plaintiff and fixed the time for answering undertakings given to date, ordered that Sandy Di Florio attend as the plaintiff’s representative on a fully informed basis on July 12 and 13, 2006 so that the examination for discovery of the plaintiff could be completed, fixed costs of the pre-trial at $750.00 payable by the plaintiff to the defendant within 15 days and that any claim for pre-judgment interest by the plaintiff shall cease to run until further order. The defendant served a motion, which was short served, and was fixed for argument on July 24, 2006. The pre-trial was adjourned to continue on August 29, 2006.

[22] The defendant’s motion was argued before me on July 24, 2006 and I ordered: that each party had up to August 28, 2006 to deliver an amended affidavit of documents, failing which they would not be entitled to rely on any further documents without leave; that the plaintiff had up to August 28, 2006 to answer any outstanding undertakings and to provide any revised answers failing which the plaintiff shall not be entitled to resile from, amend, withdraw or otherwise change the answers given without leave. Costs wasted of May 5, 2006 were fixed at $750.00 payable by plaintiff to defendant within 30 days. I also ordered that the plaintiff pay into court further security for costs in the amount of $10,740.00 by August 25, 2006; and costs of the motion were reserved to the conclusion of trial.

[23] On August 29, 2006, the pre-trial resumed and I heard submissions from counsel respecting the length of trial and matters relating to the conduct of the trial. On the basis of counsels’ representations by order I fixed the trial for 10 days commencing March 2, 2007; the delivery of expert reports was ordered governed by Rule 53.03; witness lists consisting of the name, occupation, relation to the party and a short outline of the ambit of the witness’s testimony were ordered delivered by February 12, 2006; directions respecting document books were also given; and directions respecting the tendering of any additional documents at trial were given.

[24] On January 22, 2007 the defendant brought a further motion seeking an order requiring the plaintiff to pay into court further security for disbursements, preparation for trial and the trial. After hearing argument, I found that the counterclaim was substantial, that it was alleged to require expert reports, trial preparation and trial time and that the defendant was not entitled to have security for costs posted for the counterclaim. On that basis I ordered that the plaintiff pay into court further security for costs in the amount of $18,000.00 by February 26, 2007. Costs of the motion were left for disposition at the end of the trial.

The Trial

[25] The trial commenced at 10:00 a.m. March 2, 2007. The plaintiff’s three document books were marked as Exhibit A and the defendant’s three document books as Exhibit B. The plaintiff sought an order amending the statement of claim, by reducing the amount claimed by $5,000.00 to $159,686.46. The defendant did not object. I granted the amendment. Defendant’s counsel sought an order excluding witnesses, save for each party’s instructing individual and I made the order. Each counsel made opening statements.

[26] The plaintiff called the following witnesses, Tony Di Florio, Paul Bishay and Frank Di Florio in support of the plaintiff’s claim. Their testimony was given on March 2, 6, 7, and part of March 8, 2007 and constituted the plaintiff’s claim in chief.

[27] The defendant in support of its defence and counterclaim, called the following witnesses, Donato Frigo, Peter Naccarato, William Robert Pickford, Lorenzo Savella, on the following days, March 8 (part), 9, 13, 14, 15, 16 and 20, 2007. On March 20, 2007 during the cross-examination of Mr. Savella, the allocated time for the trial ran out. After hearing submissions from counsel as to how much further time was needed to complete the trial, I adjourned the trial to October 30, 2007, my next available trial date, with October 30 and 31, November 1 to 2 and 6 to 7, 2007 set aside for the balance of the evidence and closing submissions.

[28] On October 30, 2007 the testimony of Mr. Savella was completed. The defendant continued with its case with the following additional witness, Angelo Caranci, Scott Samuel McCavour and the defendant’s expert, John C. H. Pearson. They gave their testimony on the additional days set aside for the trial, plus on one other additional day, November 8, 2007. In the result the defendant’s case took approximately thirteen and a half days.

[29] During the trial on October 31, 2007 at noon I was advised by both counsel that there was agreement that Hady’s statement of defence and counterclaim be amended by adding paragraph 16(g) to the following effect: a claim for compensation paid to the owner to compensate the owner for late delivery of the project and delay in making the project ready for tenant fixturing and in turn that the plaintiff’s defense to counterclaim be amended by the addition of paragraph 10A to the following effect, “Plaintiff denies that it caused any delay that resulted incurring such damages, in the alternative, if it did cause such delay the defendant Hady failed to mitigate such damages. In addition the plaintiff states that it was not privy to any agreement between the owner and Hady as to any amount that may have been agreed upon by them.” On consent I granted the order amending both pleadings as sought and as agreed to.

[30] On November 8, 2007 the testimony of Mr. Pearson was completed. I reserved my decision and gave directions for the submission of argument by way of written submissions with the final written submission to be filed on February 29, 2008.

[31] The plaintiff delivered its written submissions with a submissions exhibit book in respect of its claim followed by Hady’s responding submissions and submissions in respect of the counterclaim including a compendium of documents. `The plaintiff then delivered reply submissions and responding submissions in respect of the counterclaim followed by Hady’s reply submissions which were to be limited to replying to the plaintiff’s responding submissions to the counterclaim.

The Fact Witnesses

[32] Tony Di Florio was the first witness for the plaintiff. He and his two brothers are the sole shareholders of the plaintiff. He has worked in steel since 1975 and started with the plaintiff in 1992 which was formed after their parents died and the parents’ company, Mississauga Steel stopped operating. His principal role with the plaintiff was that of purchasing agent but he became more involved in this project. He gave his testimony in chief in a straightforward fashion. When he didn’t recognize a document or did not have knowledge of the subject matter of a question he said so without hesitation. The events and issues he testified about were those of which he had personal knowledge and involvement with. I find his evidence to be credible.

[33] Paul Bishay was the second witness for the plaintiff. He is a professional engineer, qualifying as such in 1993. He came from Egypt where he had obtained a Bachelor of Arts degree. He was involved in construction work since 1989. At the time of the improvement, he was working for Discovery Construction Ltd. (“Discovery”), which carried on the business of general contracting including steel erection. On behalf of Discovery he entered into an agreement with the plaintiff to do the steel erection work on the project and retained D & K Welding Inc. (“D & K”) as a sub-contractor for some of Discovery’s work. He also gave his evidence in a forthright manner without hesitation. When he could not remember a precise date or fact, he said so. He, if he was unsure of the timing of events, said so. In his testimony he gave evidence both for and against the plaintiff’s and Hady’s positions depending on the issues canvassed. By and large his recollection of the events was corroborated by the documentary evidence. I find his evidence to be credible.

[34] Frank Di Florio was the third witness for the plaintiff. At the relevant time he was employed by the plaintiff as an estimator. He had 30 years experience in structural steel with various companies, primarily as a draftsman. He was responsible for sourcing work for the plaintiff and was responsible for the plaintiff’s tender for this project. He was ill during the fall of 2003 and as such did not have direct knowledge of many of the events which took place at that time or the correspondence addressed to him at that time and admitted that to be the case. When presented with documents from this period and into December 2003, many of which were specifically addressed to him, he readily admitted he could not recollect seeing the documents before and made a similar admission relating to some of the documents emanating from the plaintiff. In dealing with the weight to be given to his testimony respecting the events during this period I have taken into account his inability to identify documents which were exchanged at the time. His testimony of which he had personal knowledge was corroborated by the documents tendered in evidence before me.

[35] Donato Frigo a vice president and minority shareholder of Hady was called as its first witness. His background was that of a senior engineering technologist and then professional engineer. He worked for Hady for 39 years. He testified that he was not involved in the day to day events relating to the project and only visited the site about once a month. He testified as to the contents of the unsigned agreement between Hady and the Owner. He also testified as to the alleged contract between Hady and the plaintiff but agreed that there were changes to the written contract which Hady did not accept on its last return by the plaintiff to Hady. He also testified as to the agreement reached with the owner by Hady in relation to its granular claim and payment of the holdback monies by the Owner. He was led through much of his testimony by Hady’s counsel such that the weight I give his testimony is greatly lessened. Mr. Frigo also on cross examination admitted that he had no recollection of what actually happened on site or what the weather conditions were through the relevant period such that his testimony in relation to what took place or could have taken place on site was of no value. He also had no recollection of when the Owner raised the question of damages attributable to Hady. His testimony relating to the agreement reached with the owner, particularly in relation to the portion of the settlement charged back to the plaintiff and the basis therefore was not credible and was not corroborated in so far as it related to the plaintiff.

[36] Peter Naccarato a senior project manager with Hady at the time of the improvement was called as its second witness. He was employed by Hady since May, 1979 when he graduated from Centennial College as an architectural technologist. He had considerable experience as a project manager in various “big box” projects and was the project manager for the improvement. He admitted that Lorenzo Savella another project manager who reported to him was the one directly involved with the improvement and with the plaintiff and that much of what he testified to was based on what Mr. Savella recounted to him. When asked about events such as when was the site first ready to receive steel or ready for the roof deck, he admitted he was not on site so he had no real knowledge of what transpired up to the time that the plaintiff left the site in January 2004. Assessing his testimony as a whole, it was biased in favour of Hady and inaccurate. For example, he testified that he along with Mr. Savella used the plaintiff’s contract to prepare the July 9, 2003 schedule and that the schedule was prepared on July 9, 2003. The July 9, 2003 Hady schedule was put forward by Hady as central to its claim for set off and counterclaim based on delay. The plaintiff’s contract was prepared and dated July 22, 2003. The plaintiff sent it to Hady on or about July 30, 2003. Hady’s schedule is dated and he admitted that it was prepared on July 9, 2003. As such the Hady schedule was prepared prior to receipt of the plaintiff’s contract. The schedule has a start date for structural steel erection of September 22, 2003. The plaintiff’s contract sets out a schedule which requires pre-erection steps totaling a minimum of 10 weeks to a maximum of 12 or more weeks putting the start of steel erection into October. The Hady schedule was created about three weeks before the plaintiff’s contract was created. The plaintiff’s contract scheduling terms were not incorporated into the Hady schedule. His testimony in this respect is patently incorrect. He too was extensively led through his evidence in chief. A good example of the extensive leading of his testimony is that relating to what took place at the meeting of October 28, 2004 with the owner. On that basis I have given little weight to his testimony save where corroborated by acceptable evidence. Failing corroboration and in particular where his testimony is at odds with that tendered on behalf of the plaintiff, I prefer the testimony tendered for the plaintiff.

[37] William Robert Pickford was called as Hady’s third witness. He was Hady’s on site construction superintendent for the improvement. He had 36 years experience as a construction superintendent on projects having a value of $500,000 to $20,000,000 with a wide range of structures. He started work on the improvement out of a trailer on site on or about July 3, 2003 reporting to Mr. Savella who he understood to be the project manager. He was hired specifically to ramrod the improvement and as such he had a self interest in maintaining his reputation with Hady and at large by ensuring the improvement was completed as scheduled. He had no personal knowledge of the contract negotiations or agreements reached with the plaintiff other than as conveyed to him by Hady, principally through Mr. Savella. He did he have knowledge of payment terms applicable to the plaintiff’s work or payments made by Hady for the plaintiff’s work. In caring out his duties he compiled daily reports which were entered as Exhibits 1, 2, B-Tab176 and 7. Prior to giving his testimony he only reviewed the daily reports. He was on his own on site except for a few Hady labourers, who he used at different times to perform work not undertaken by the various subcontractors. He was given the schedule dated July 9, 2003 for the project by Mr. Savella but had no actual knowledge of whether the plaintiff had agreed to it or whether the plaintiff was bound by it. He proceeded on the basis that there was a binding contract between the plaintiff and Hady which imported the terms of Hady’s contract with the owners and that the July 9, 2003 schedule and the Change Order Procedure was binding on the plaintiff. In determining the weight to be given to his testimony I have taken into account that he was in effect misled by Hady’s failure to disclose to him no written agreement had been reached with the plaintiff respecting a binding schedule and the application of the Change Order Procedure. The schedule apparently was amended several times to reflect encountered delays but he made no reference to the various changed schedules in his testimony but gave his testimony as if that of July 9, 2003 governed throughout. He had a self interest in completing the improvement as set out in the July 9, 2003 schedule as it reflected directly on his reputation as an on site construction superintendent. His self interest bears on the weight to be given to his testimony in crucial areas. It is typified by his handwritten fax of December 9, 2003 sent at 21:56 to the plaintiff attention of Frank Di Florio. He starts by stating that Frank Di Florio “missed a few items as follows” in his letter dated December 4, 2003 to Dave Manton of McCavour. In the second paragraph dealing with anchor bolts he sets out events which take place on December 5, 2003. As the events took place after the date of Mr. Di Florio’s letter these events could not have been characterized as having been missed by Mr. Di Florio. Rather, their inclusion signifies Mr. Pickford’s attempts to justify Hady’s position and illustrates how his testimony was skewed. He also stated that the Metro Survey report “states only 1 set of anchor bolts off by ½” when in fact the report sets out that two off by ½” and one off by 3/8”. In his fax sent on December 29, 2003 to Tony Di Florio he states that “no forces on site” yet in the daily report for December 29. 2003 he notes that the plaintiff had 4 men working on site, 2 welding and 2 doing structural work. In giving weight to his testimony I have taken into account his inaccuracies respecting the facts he recorded and then reflected in his fax transmissions as well as his bias in favour of Hady and his self interest. I also have taken into account his candid statement that at the time of testifying he had no recollection of what specifically took place on a particular day without reference to the daily reports he prepared. Mr. Pickford too was substantially led in his testimony both in chief and on re-examination, diminishing the weight to be given to his testimony when led.

[38] Lorenzo Savella was called as Hady’s fourth witness. He had nineteen years service with Hady and was the project manager for the improvement. William Pickford reported to him and he in turn reported to Peter Naccarato. It was his responsibility to take care of the project from start to finish including: picking up the drawings and specifications from the architect, getting the tender and quoting the cost of the improvement to the owner, getting tenders from subcontractors including the plaintiff, preparing the budget and running the improvement with the construction superintendent. He left the employ of Hady in June 2004. He was on site infrequently and his knowledge of what took place came from Mr.Pickford and the faxes he received. To many of the questions posed of him in chief despite being provided with copies of correspondence he could not remember how he responded or dealt with the correspondence. During his testimony in chief while led through his testimony his memory was fine but in cross examination he repeatedly could not remember events. His testimony at times was inconsistent with the documentation and other testimony. For example he stated the plaintiff worked in the early part of December 2003 before the early December meeting but did not work after the meeting whereas the daily reports have the plaintiff’s forces on site working until January 20, 2004. Another example of his inaccurate testimony is his admission that he received the July 30, 2003 fax from the plaintiff enclosing the plaintiff’s form of contract and that he reviewed the schedule set out therein and that it did not cause him any concerns as it “corresponds to the schedule I prepared.” The two schedules do not correspond. In many instances his memory was faulty. For example he testified that he believed the underground services in respect of Building C were done in August whereas the daily report for October 6, 2003 states that work on the storm drains in the new addition to building C was being done. He was asked in chief to review what work the plaintiff did on December 1, 2003 by reviewing the daily report for that day. He started his testimony by stating there was not a sign of activity. When he was focused on the addition he characterized the plaintiff’s work as repairs. What was set out as being carried out by the plaintiff was a torque and bolt operation integral to erecting the steel in the new addition and the installation of diagonal braces for beam extensions on line 4. When all of his testimony is considered in light of all of the other evidence, particularly the documentary evidence I find his testimony to be a deliberate attempt to favour Hady’s position in this action regardless of the correctness of his evidence. He too was repeatedly led throughout his testimony in chief and in re-examination greatly diminishing the weight to be given to his testimony when led save where expressly corroborated by acceptable evidence,

[39] Angelo Caranci was called as Hady’s fifth witness. He had at least 30 years experience as an architect with Joseph Bogdan Associates Inc. the owner’s architects (“Architect”) for the improvement including two years as a principal of the company. He was not licensed with the Ontario Association of Architects. Joseph A. Bogdan another member of the firm was principally responsible for the improvement and executed the plans under his license number. In addition to preparing the plans and tender documents his firm hired other disciplines including the structural engineers, McCavour Engineering Limited, who prepared the structural drawings and who reported to his firm. In chief Mr. Caranci gave his testimony in a careful manner and when he couldn’t answer or did not understand the question said so. Further, when asked, explained why. He admitted his firms records, particularly E-Mail records were not in good shape for the period in issue. He was candid when asked to review documentation and stated he could not comment without all the relevant material before him. He stated that if something came to him involving structural steel issues he passed it on to McCavour. In cross examination dealing with timing and interaction of the work of the various stages when pressed his answers appeared at odds one with the other especially when taken through the daily reports. It was clear from his testimony that he was not directly involved with the plaintiff, he was not on site for the most part and he interacted directly with Hady on the basis of the unsigned contract between Hady and the owner. He too was led by Hady’s counsel in chief and in re-examination thus diminishing the weight I would have otherwise given to his answers when led.

[40] Scott Samuel McCavour was called as Hady’s sixth witness. He is a structural engineer. He became an engineer in 1983 and since 2002 worked in his own firm, McCavour. David Manton, a civil engineering technologist, worked for him as project manager on the improvement. His firm was responsible principally for the structural steel design and changes in Buildings C and B and the new addition reporting to the Architect. He generally gave his testimony in a straight forward manner indicating when he had no recollection of the events or documents he was being examined on. He had no involvement in scheduling or delay issues. Mr. McCavour was treated no differently than the prior witnesses called on behalf of Hady in that he too was led both in his examination in chief and on re-examination thus diminishing the weight to be given to his testimony when led.

[41] Hady did not call any representatives of the owner to support and corroborate its claim for damages against Hady, to corroborate the settlement between Hady and the Owner, to corroborate the testimony of Hady’s witnesses relating to dealings with the owner and to corroborate the authenticity of and the truth of the contents the documentation emanating from the owner produced and relied upon by Hady. In the result the evidence tendered by Hady on these matters was uncorroborated and self-serving.

[42] On numerous occasions throughout the examinations in chief and re-examinations conducted by counsel for Hady, I repeatedly advised Hady’s counsel that he was leading his witnesses in chief and on re-examination, particularly on matters of substance in dispute and that as a result the weight I could give their testimony when led was greatly diminished. Despite my repeated warnings, counsel did not desist. When the viva voce testimony of Hady’s witnesses are at odds with those of the plaintiff and there is no acceptable evidence to corroborate the testimony given by them in chief and on re-examination when led, given the extensive leading of their testimony in chief and on re-examination, I have given greater weight to the testimony of the witnesses for the plaintiff over the testimony of the witnesses for Hady when led. Also on a number of occasions Hady’s counsel, despite being warned not to do so on cross-examination cut off the plaintiff’s witnesses in mid-reply as well as Hady’s witnesses in chief by asking another question before the witness completed his answer. The inference is and I so find that he did so as he anticipated the forthcoming testimony would be adverse to Hady’s position.

The Sole Expert Witness

[43] Hady’s seventh and last witness was John C. H. Pearson tendered as an expert in project management and delay and structural steel procurement, fabrication and erection. He was examined and both counsel made submissions as to whether he was qualified. After considering the testimony of Mr. Pearson on examination by both counsel and the submissions[^4] of both counsel I held that:

In terms of the assessment of Mr. Pearson’s qualifications in the areas sought for him to be qualified to give opinion evidence I am satisfied on the evidence tendered that he can be tendered as an expert in terms of project management and delay but not in respect of structural steel procurement, fabrication and erection. In respect of the latter the evidence falls far short of qualifying him.

[44] Again counsel for Hady, as with the other Hady witnesses led Mr. Pearson in his testimony both in examination in chief and re-examination thus diminishing the weight to be given to his evidence when led.

[45] Regardless of the qualification of a person put forward to give opinion evidence, the admission of expert opinion evidence is not a right but it depends on the application of the following criteria, (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule[^5]; and (d) a properly qualified expert[^6]. Further, as I have found in the past, it is not for the expert to determine the facts and issues in the action, but rather based on assumptions supported by the evidence, to assist the trier of fact with scientific information, which is outside the experience and knowledge of the trier of fact.[^7] In addition for the expert’s opinion evidence to have validity not only must the expert disclose all the information he considered in arriving at his opinion but the factual underpinning for his opinion must be put in evidence at the trial.

[46] As to Mr. Pearson’s testimony the following statement by Sopinka J. in Mohan at paragraph 17 on behalf of the Court, where he restated what Dickson J. had said in R. v. Abbey[^8] at p. 42 has particular application:

With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.)

[47] Some experts in giving their opinion evidence “make the decision”, rather than furnishing scientific information which is likely to be outside the experience and knowledge of a judge or jury. Further in support of their opinion they make findings of fact to support their conclusions. This failing by some experts, that is crossing the boundary to “make the decision”, and make findings of fact is of particular concern in a trial in a construction lien reference before a construction lien master who on a continuing basis solely deals with construction lien actions and their subject matter. If the expert crosses the line, it will of necessity give rise to a finding that the opinion evidence will not be relied upon, as for the court to rely upon it amounts to the court ceding both its factual making function and decision making function to the expert. When an expert produces such a report, not only will such a report not be given much weight, but also such a report serves only to unnecessarily increase the costs of the trial, an expense that the tendering party normally will be liable for.

[48] In addition to the foregoing, I cannot accept Mr. Pearson’s opinion evidence for the following reasons:

(a) Delay is one of the issues raised in the action before me and forms the basis of Hady’s counterclaim. Delay is thus relevant however there is a real issue as to whether I as the trier of fact needed the assistance of an expert to decide delay in the circumstances and on the evidence before me. Delay as argued by both sides turned on factual findings relating to what was agreed to between the parties, what work was done and when by the plaintiff and what effect the execution of the work done by the plaintiff had on the project’s completion and upon any downstream and dependent trades. There was no scientific information in issue upon which Mr. Pearson was qualified to opine which was outside my experience and knowledge. Mr. Pearson purported to make factual findings and based his opinion on them relating to delay, a role which in this action was mine to fulfill.

(b) Mr. Pearson was obligated to disclose all the information upon which he based his opinion. In his testimony he admitted that all the information he considered was not disclosed by him.

(c) Mr. Pearson in his report states that in addition to the information he gained from the documents which he reviewed he had interviews and discussions with Peter Naccarato, Frank Bhola, Domenic Angaran and Len Fantin. Only Mr. Naccarato was called as a witness before me. Frank Bhola, a project coordinator with Hady, Domenic Angaran, president of Midtown an electrical subcontractor, and Leo Fantin, president of Cool Tech the HVAC subcontractor were not called to give evidence before me and their information upon which Mr. Pearson based his conclusions was not put in evidence before me and as such it could not be tested by the plaintiff by cross-examination or replied to by rebutting evidence.

(d) When Mr. Pearson made his factual findings he did exactly what I as the court am charged to do at trial. His factual findings differ from my factual findings as set out in these reasons. Further in making the factual findings which underpin his report and opinion set out therein he was not opining on an inference which due to the technical nature of the facts I was unable to make. A good example is his factual conclusions of when a contract was reached by the parties and what contract governed the relationship between the parties with which I am not in accord.

(e) He set out that he reviewed and considered the documents set out in the two parties’ affidavits of documents. The affidavits of documents were not before me in evidence. Before me although much documentation was identified in testimony by the witnesses called by the parties at the trial there was no evidence to indicate that all the documents set out in the parties’ affidavits of documents were introduced into evidence before me. As such Mr. Pearson’s opinions appear to be based on evidence not before me.

(f) The plans and drawings used by Mr. Pearson to arrive at his conclusions as set out in his report had revision dates of 28/07/03 or 29/07/03 whereas the plaintiff’s quote was based on plans and drawings prepared prior to those revisions. Mr. Pearson did not address the effect of changes in plans and drawings, particularly in terms of the requirement to do new work and the impact of the changes and new work on the plaintiff’s execution of the work it agreed to do and how such impact bore on the issue of delay.

(g) Mr. Pearson reviewed the fax of September 16, 2003 enclosing SO2 SO4 SO5 and SO6 revised structural drawings dated September 3, 2003 but did not ask for copies of the drawings to ascertain their effect on the plaintiff’s execution of its work and the consequential effect on the issue of delay. Mr. Pearson testified that he asked Mr. Naccarato to get him all the documents but did not state that once he reviewed the September 16, 2003 fax that he asked for the revised drawings so he could determine their impact. It is inconceivable that an expert purporting to deal with delay once he was aware that the structural drawings were revised would not ask to see those revised drawings or if the revised drawings were not provided to at a minimum qualify his opinion. Mr. Pearson in his report did not qualify his opinion on that basis.

(h) Mr. Pearson considered “various limited documentation in Hady’s possession found to be relevant to the project as a whole and necessary in understanding the context of GTA’s performance” without identifying the specific documentation. In the result there was no evidence tendered before me to indicate that all such documentation had been produced before me.

(i) Although he was not qualified as an expert to give opinion evidence in respect of structural steel procurement, fabrication and erection in his report he does exactly that and integral to his findings are his opinions concerning procurement, fabrication and erection of structural steel. In addition counsel for Hady led him in chief extensively through testimony relating to his findings and opinions in respect of the procurement, fabrication and erection of structural steel.

(j) Integral to his conclusions is his determination that “the Hady subcontract document signed by both parties clearly forms the contractual arrangement”. Hady knew that the subcontract had not been finalized by the parties as Mr. Frigo refused to accept the last changes made to the contract by the plaintiff and failed to advise Mr. Pearson of that fact being content that Mr. Pearson proceed on the basis that the Hady contract formed the agreement between Hady and the plaintiff. My finding is that the subcontract document was not agreed to by the plaintiff and Hady. Further in cross-examination Mr. Pearson admitted that he reviewed the plaintiff’s fax of October 2, 2003 wherein it was set out that “We have not yet received a signed confirmed contract for the above job.” and Hady’s fax of October 14, 2003 asking that changes to the contract be initialed and returned. It also appears he was not informed by Hady that after plaintiff last returned the contract, again with changes, that Hady did not accept and initial the changes.

(k) Mr. Pearson based his opinion entirely on the Hady July 9, 2003 timetable which he found to be binding on the plaintiff. He was not shown any of the subsequent amended timetables[^9] by Hady nor in particular was he shown Exhibit 9 the amended timetable dated December 1, 2003 such that his opinion was based on an incomplete set of assumptions. Further, he did not consider the posting of timetable changes in Mr. Pickford’s on site construction trailer as notice of change in timetable to the trades.

(l) Mr. Pearson arbitrarily chose July 22, 2003 as the date of the contract between the plaintiff and Hady as that was a date at the top of the Hady contract notwithstanding that the execution date was August 26, 2003[^10] and then used July 22, 2003 as the start date as the basis for his conclusions notwithstanding he had before him and reviewed documentation indicating the contract had not been entered into, as noted above.

(m) Mr. Pearson in terms of a start date for steel erection relies solely on the plaintiff’s fax of August 22, 2003 to Hady that erection would begin on September 22, 2003. On cross examination he admits he made no inquiries to determine whether the plaintiff had asked to or changed the start date from September 22, 2003.

(n) Mr. Pearson in cross-examination conceded that at the beginning of December, 2003 the other trades could have gone in and done their work with any remaining steel work the responsibility of the plaintiff to be completed thereafter.

(o) Mr. Pearson in cross-examination admitted that he did not investigate why the slab in the new addition was not poured until February 6, 2004 and that in coming to his opinion did not factor in weather and changes in the plaintiff’s work.

(p) Mr. Pearson also admitted that he only received one of the twelve Construction Review Reports from Hady which were prepared periodically by the structural engineers McCavour Engineering Limited. The format of the reports was to first note construction progress and second to note deficiencies and update the state of deficiencies noted in a prior report. From the one report he knew that there were others but made no effort to obtain them although they amounted to good evidence of the continuum of what had taken place on site.

(q) Based on all the testimony before me I find that Mr. Pearson’s report is based on a fictional situation created by him from his factual findings based on the material he considered and the interviews he conducted which did not reflect the evidence before me or all of the evidence he could and should have been given.

(r) Taking all of these findings into consideration I find that Mr. Pearson’s report lacked independence and objectivity and was designed to bolster Hady’s position and in turn make the plaintiff’s position look bad.

[49] The inference is and I find that Hady when providing documentation to its expert, Mr. Pearson, cherry picked what documents it provided to ensure that it would obtain a favourable opinion on the issue of delay. Four examples are the failure to provide the drawings relied upon by the plaintiff in making its quote, the failure to provide the structural steel drawings revised as of September 3, 2003, the failure to provide the timetables Hady created after July 9, 2003 particularly that of December 1, 2003 and the failure to provide all of the Construction Review Reports prepared by McCavour.

Documentary Evidence

[50] Each party delivered document briefs, three volumes each, which were marked Exhibits A and B subject to proof. During the course of the viva voce testimony the witnesses were taken to individual documents in Exhibits A and B for their proof.

[51] The daily reports were prepared by William Pickford. Those set out in Exhibits 1 and 2 were accepted by the plaintiff as authentic. Originally some of the daily reports were reproduced by Hady at Tab 176 in Exhibit B but were then at the opening of trial supplanted by Exhibits 1 and 2. The daily report for February 6, 2004 was entered as Exhibit 7 on March 14, 2007 during Mr. Pickford’s examination in chief. As to contents I accept as substantially accurate the notations set out for each recorded day pertaining to date, times, weather, who was on site and what actions were taken or observed. Notwithstanding, the daily reports are not necessarily completely accurate as there were omissions and errors. For example the daily report for December 12, 2003 set out that OC “Finished const. Bldg B Line 5.” Then the daily report for December 13, 2003 set out that O. & C. Plastering Ltd. (“OC”) “Finish const. Bldg. B Line 5” and that for December 15, 2003 “OC Plastering remove scaffold Bldg B….” Given the entry for December 13 the entry for December 12 was not accurate. The daily report for December 12 appears to reflect Mr. Pickford’s subjective view of what took place as opposed to what actually took place.

[52] Construction Review Reports were prepared periodically by McCavour by visiting the site and reviewing the progress of the improvement. The format used in the reports was to first note construction progress and second to note deficiencies. Deficiencies noted in prior reports were updated. Given that the structural engineers were employed by the owner and given the nature of their reports their reports provide a relatively objective view of the progress of the improvement, what deficiencies were noted at the time of each inspection and what deficiencies noted in a prior report were still outstanding. The deficiencies were not limited to structural steel but also related to other trades and Hady’s responsibilities. For example Report #8 dealt with deficiencies identified in Report #7 (which was not produced) relating to voids in grout on leveling plates for steel columns and anchor bolt deficiencies, both of which were Hady’s responsibilities and which had a direct bearing on delay in respect of the erection of the steel columns in the addition. The reports were dated as follows: August 13, 2003 Report #1, August 21, 2003 Report #2, August 27, 2003 Report #3, September 11, 2003 Report #4, September 25, 2003 Report #5, October 10 Report #6, October 22, 2003 Report #7, November 10, 2003 Report #8, December 8, 2003 Report #9, December 18, 2003 Report #10, January 7, 2004 Report #11 and February 4, 2004 Report #12.

[53] Of the twelve reports only Reports 8, 9, 10, 11 and 12 were produced at trial. Copies of the Reports which were addressed to the owner’s architect were also sent to Mr. Savella and Mr. Pickford. Before me it was disclosed that Mr. Pickford forwarded copies of the following Reports to the plaintiff: # 6 on October 10, 2003, #8 on November 11, 2003, #9 on December 8, 2003, #10 to the plaintiff on December 18, 2003, #11on January 7, 2004. Mr. Manton on February 4, 2004 when he distributed Report #12 also copied the plaintiff.

[54] On the basis of the testimony before me it appears the 12 reports were prepared starting on August 13, 2003 and finishing on February 4, 2004 but only Reports Numbers 8, 9, 10, 11 and 12 were introduced into evidence. Report # 9 was introduced through Mr. McCavour as Exhibit 11 on November 2, 2007 during his examination in chief. Counsel for the plaintiff stated it was the first time he had seen it but did not object to it going in. Report #11 was introduced as Exhibit 19 during the re-examination of Mr. Caranci although it also appeared as Exhibit A Tab 97.

[55] As a consequence I only had before me the Construction Review Reports the product of the McCavour inspections conducted on November 10, 2003 and thereafter. I did not have the fruit of the prior inspections although general comments without specifics were made in testimony as to what they reflected.

[56] Produced before me was Hady’s original construction schedule dated July 9, 2003. Mr. Savella admitted on cross examination that the original schedule was revised a few times to reflect delays but that the completion date remained the same, December 1, 2003. Later in cross-examination he contradicted himself stating that he believed the new completion date was the end of February 2004. During the examination in chief of Mr. Caranci on October 31, 2007 following Mr. Savella’s testimony a revised timetable was produced dated December 1, 2003 which set out a completion date of work on Building C and the new addition of February 27, 2004. It is troubling that Hady neither produced nor gave to its expert all versions of the timetable given that it was asserting a delay claim and changes in the timetable bear directly on that issue.

[57] Exhibits A and B were initially marked as exhibits on the basis that their contents had to be testified to by the witnesses called by the parties. Not all of the documentation appearing at the various tabs in the two Exhibits were put to the witnesses appearing before me. In coming to my findings and decisions I have not considered the documents set out in Exhibits A and B which were not put to the witnesses

Findings of Fact

[58] On the basis of the testimony and the exhibits before me in addition to the findings of fact and conclusions above and following I make the following findings of fact and conclusions:

1. The lands the subject of the improvement comprised approximately the western half of a parcel of land of about 19.68 acres being the north-west corner of Warden and Eglinton Avenues running north to Ashtonbee Road. On the western half of the parcel at the southern end was an existing building (“Building B”) and at the north end an existing larger building (“Building C”). The improvement consisted of demolition and rebuilding Building C, a new addition to Building C along the demolished wall, partial demolition and rebuilding of Building B, removal of underground tanks, water mains and concrete and building a new parking lot and roadways on the lands surrounding the two buildings.

2. The initial structural steel drawings SO! To SO8 were prepared by McCavour in April, 2003.

3. Hady became aware of the improvement in the spring of 2003 and decided to bid on it as general contractor and for that purpose Hady solicited quotes from various subcontractors.

4. On May 23, 2003, at Hady’s request the plaintiff quoted to Hady for the supply and erection of structural steel and remedial steel work to Building C at a price of $248,500 plus GST based on structural steel drawings SO1 to SO8 dated April 24, 2003 which were supplied to the plaintiff for the purpose of the quotation. The quotation provided that extras would be based on $2,425 per ton plus erection and equipment and deletions from the quote would be based on $1,500 per ton. The quotation also provided that the plaintiff for the price would supply F.O.B. the job site anchor bolts and leveling plates and that the plaintiff would supply and erect reinforcing materials including OWSJ, bridging, A/C unit frames, beams, columns, perimeter angles and vertical x-braces on the structural drawings dated April 24, 2003..

5. After receipt by Hady of all the sub-contractor quotations it solicited, Hady quoted a price to the owner following which Hady entered into negotiations with the Owner.

6. Tony, Frank and Sandy Di Florio were the sole shareholders of the plaintiff. Tony De Florio’s principal function with the plaintiff was that of purchasing agent. Frank Di Florio, had numerous functions with the plaintiff, including soliciting new contracts, drawing up contractual terms, reviewing drawings, preparing drawings and takeoffs, bidding on contracts and scheduling. He also was the welding supervisor. Sandy Di Florio had as his responsibility fabrication and shipping. Sandy Di Florio did not testify. Plaintiff’s counsel in his submissions stated he could not give evidence as he was in an accident the week prior to the commencement of trial. No evidence was tendered before me to corroborate the submission.

7. Discovery was the plaintiff’s subcontractor for the onsite steel work including steel erection. Discovery in turn used its own employees and sub-contractors to effect its work. There were three aspects to its onsite steel work: X bracing work on the north wall/line of Building B, X bracing and reinforcing work in Building C which did not require shop drawings, just plans, and the erection of the steel for the new 20,000 to 25,000 square foot addition to Building C.

8. Steel erection could not take place if there was rain or snow as it was unsafe to work on the steel in those conditions. Steel erection could not commence in the new addition until the site was prepared which included excavation, installation of foundations including column piers, underground sewer/drain installation, backfilling the foundations, filling the interior of the new addition with final fill and stone for the slab to ensure the site was level and accessible to accommodate the delivery of steel and the use of a crane and a scissor lift, and the installation of leveling plates and anchor bolts. In particular in the new addition footings and foundation walls and support piers came first. The new addition was about three and a half feet above grade and as a consequence backfilling had to be completed to ensure that the foundations and piers had lateral support. Next the drainage system had to be installed. Anchor bolts and leveling plates also had to be installed on the foundation walls and piers. It was Hady’s responsibility to complete or have this work completed before steel could be delivered to the new addition site for erection and erection started.

9. On June 30, 2003, Mr. Savella on behalf of Hady sent a letter of intent to the plaintiff confirming that it intended to enter into a contract for structural steel work to Building C plus bracing for the north wall of Building B with the plaintiff at a price of $248,500.00 plus GST. The scope of the work was that set out in plans prepared by McCavour and the Architect and Change Notices 1 to 8 although no dates were set out. The plans and Change Notices had to be those bearing a date prior to July 1, 2003 as by the terms of the letter they had to be in existence prior to date of the letter. The scope of the work set out increased from that quoted on by the plaintiff by the inclusion of the Building B work but without any change in price. Hady requested that the plaintiff start preparing shop drawings. The work was to be performed by maintaining the work schedule and as directed by the Site Superintendent or people having jurisdiction. No specific schedule was referred to or provided with the letter. The letter noted that the contract would follow shortly. There was no mention of payment terms or pricing of extras although the plaintiff’s quotation addressed these provisions such that Hady was aware that the plaintiff was quoting on that basis. Hady sent the letter without first having in hand either a similar letter or contract from the owner.

10. Mr. Savella testified he met with Frank DeFlorio prior to his letter of June 30, 2003 and that he reviewed the new scope of work and its duration. The drawings and specifications which were reviewed and upon which their discussion was based of necessity would have been those prepared before the meeting. No schedule waas produced by Hady which allegedly was discussed at the meeting. The plaintiff’s understanding, which I accept to be the case, of “any schedule” is that reflected by the contract it tendered for its work dated July 22, 2003 and not that testified to by Mr. Savella. Mr. Savella also testified that his objective was to have the plaintiff prepare shop drawings immediately notwithstanding he had not yet sent the letter of intent, nor had Hady and the plaintiff entered into a written contract, nor had Hady been advised by the Owner in writing that it was awarded the contract for the improvement.

11. Willian Pickford was hired by Hady as project superintendent with responsibility for the site. Mr. Savella was Hady’s project manager for the improvement and Mr. Pickford’s supervisor. Mr. savella took care of the office and Mr. Pickford took care of the site reporting to Mr. Savella. Mr. Pickford had no knowledge of the negotiations between the plaintiff and Hady and what they did or did not agree to. He proceeded to superintend the project on the basis of the information supplied to him by Mr. Savella in relation to contract terms and schedule.

12. On July 3, 2003 Pickford met with the Owner’s representative on site and obtained keys for the gates and buildings.

13. On July 7, 2003 Hady sent two copies of structural drawings S01 to S09 and two copies of architectural drawings W001 to W503 to the plaintiff. What is unclear is what version of the drawings were sent at the time except that they could not have had revision dates after July 7, 2003. The drawings entered as exhibits before me had issue dates after July 7, 2003 and as such were not the drawings upon which the plaintiff based its initial quote, nor the drawings upon which the Hady June 30, 2003 letter of intent was based nor were they the drawings sent by Hady on July 7, 2003.

14. On July 8, 2003 Pickford received a trailer on site to be used as the site construction office.

15. On July 8, 2003, the Owner wrote to Hady advising that it was its intent to provide Hady the contract for the improvement for the agreed price of $3,900,000 subject to final agreement and execution of a contract. The only evidence before me on the issue of what contract was entered into between Hady and the Owner was production of an undated and unsigned stipulated price contract between it and the Owner for the improvement and the letter from the Owner stating it intended to enter into a contract with Hady. No one was called from the Owner to testify as to what contract if any Hady and the Owner actually entered into in relation to the improvement. At best there were only self serving statements from Hady’s witnesses. None of Hady’s witnesses could testify that the contract as produced was actually executed by Hady and the Owner. In particular it was admitted by Mr. Frigo on behalf of Hady and confirmed by Mr. Caranci that the contract was never executed. The unsigned copy provided for commencement of the work by July 15, 2003 and substantial completion by November 30, 2003 subject to adjustment as provided for in the contract documents. The contract contemplated that adjustments might be needed in the execution of the work and provided for a method of dealing with such adjustments between Hady and the Owner.

16. Mr. Naccarato with Mr. Savella prepared the Hady schedule for the improvement dated July 9, 2003. In examination in chief Mr. Naccarato stated that at the time of the June 30, 2003 letter he did not contact the plaintiff in respect of scheduling, consistent with the plaintiff’s position. Hady’s July 9, 2003 schedule does not specifically set out or reference the Building B demolition and other work including that of the plaintiff as it does for Building C and the new addition. Mr. Naccarato also stated that he circulated and discussed the schedule with the sub-trades and that the plaintiff raised no objection. His testimony is contradictory. The Hady July 9, 2003 schedule in respect of the plaintiff’s work is inconsistent with that set out in the plaintiff’s form of contract dated July 22, 2003. I find that the plaintiff never agreed to the Hady July 9, 2003 schedule or discussed it as alleged.

17. Mr. Frigo when pointed to item 10 on the Hady July 9, 2003 schedule stated there was a mistake in the completion date of November 17, 2003 for completion of the foundation walls in the new addition. No corrected schedule was produced before me. The schedule on its face was incapable of being performed by the plaintiff as it could not start steel erection in the new addition until the foundations were completed and backfilled.

18. Mr. Pickford testified that he received the Hady July 9, 2003 schedule from Mr. Savella and that he followed it and policed it. He had it posted on the wall in the construction trailer. The schedule was out of sync with the work virtually from the beginning but was either never changed or adjusted to reflect the delays which occurred until the end of November, 2003 or the changes were not produced. Mr. Pickford confirmed that the work in Building B was not listed in the schedule. The work carried out by plaintiff in August to place temporary cross bracing cables in Building C also was not included. The schedule was changed as of December 1, 2003 and was introduced in evidence before me during the testimony of Mr. Caranci after all the other witnesses called by Hady had testified save for Mr. Pearson.

19. The plaintiff reached an agreement with Discovery to act as its sub-subcontractor for the onsite steel work at a price of approximately $29,000.00 for the work in the existing building and approximately the same amount for the new building.

20. The steel supply and erection process for the new building comprised of a review of the drawings, preparation of shop drawings, ordering the raw steel, fabrication of the raw steel, delivery of the fabricated steel, sorting the steel on site, erection of the steel and inspection.

21. The scope of the work in Building C comprised of reinforcing the joists, reinforcing for heating units, and reinforcing of the roof to take the weight of new mechanicals being added to the building. As demolition took place the work in Building C changed frequently with the Owner issuing site directions, contemplated change notices and contemplated change orders to Hady requiring extra work and materials and extended the time for completion of this work. The plaintiff when requested quoted on the changes. Invariably Hady did not accept the quotations but insisted that nonetheless the work be done. The plaintiff did the work for a series of the changes which were requested but Hady did not respond with its position ion the costs as submitted by the plaintiff until January 12, 2004, eight days before the plaintiff completed its work including deficiencies and the requested extras.

22. The plaintiff prepared its form of contract dated July 22, 2003 for a price of $248,500 plus GST, based on drawings S01 to S08 dated April 24, 2003 and change notices 1 to 8. The scope of the work was that originally quoted. Rates for extras and deletions to the work were set out. It also provided that no extras would be performed unless a signed purchase order was received by fax. The contract set out a schedule but without a start date. It provided for two weeks for erection drawings, drawings to be approved by Hady before shop drawings are started, two weeks for shop drawings, six to eight weeks for fabrication of the steel and two and one-half weeks for the erection of steel. The schedule concluded with the following limitation: “GTA will not be responsible for delays.” Another term provided that the document was not a contract until all terms and conditions negotiated and accepted in writing by both parties. No charge backs unless approved by plaintiff in writing. Payment terms as set out were 90% as work progresses and 10% 30 days on completion of steel. On July 30, 2003, the plaintiff forwarded this contract for its work to Hady who received it on that day. Hady did not sign it but instead chose to prepare its own form of contract.

23. Mr. Savella testified that the schedule of work set out in the plaintiff’s form of contract corresponds to the Hady July 9, 2003 schedule. His statement is not correct. The plaintiff’s schedule has no start date whereas Hady’s does. The plaintiff’s contract outlines the duration of all its work at approximately fourteen and a half weeks, that is, over three months from commencement. Hady’s July 9, 2003 schedule does not address Building B work by the plaintiff and has a start date of September 2, 2003 and a completion date of October 9, 2003 for all of the plaintiff’s work, approximately five weeks.

24. Hady’s form of contract for the plaintiff’s work bears the date July 22, 2003, with the purported execution date set out as August 26, 2003. This form of contract although signed by both parties was exchanged a number of times, each time with changes to be initialed, that is accepted by the opposite party. In the end Hady did not accept the plaintiff’s last changes to the contract such that the partyies failed to agree that the Hady form of contract would govern the plaintiff’s work. Scheduling was not directly set out in the Hady form of contract. Hady’s counsel, in his opening address, admitted that to be the case and that the contract was not accepted as modified by both parties. Nonetheless Hady’s case before me was presented as if Hady’s contract was binding on the plaintiff. The Hady form of contract did have a reference in section 3 to the “specifications, terms, conditions, plans and blueprints of the principal contract” stating that Hady would make them available to the plaintiff who was to study and be bound by them. Attached was an Appendix “A” listing the plans. Noted thereon were the words that the price “does not include 5-VBX based on drawings given to GTA @ time of tender.” The only consequence provided in the “Hady contract” for delay was that set out in section 3, namely that if after three days notice the work was not expedited by the plaintiff, Hady could take over execution of the remaining work and complete it, charging the cost of completion against the contract price with any excess over the contract price of the cost of completion to be paid by the plaintiff. As amended, that term provided that any disputes relating thereto “shall be resolved by Hady & GTA.” The Hady form of contract also had the following terms: site must be clear at all times to receive steel, no charge backs will be allowed unless GTA approves the chargeback in writing and that payments were to be made within 30 days from the later of the 29^th day of the month in which the work was completed and an invoice was submitted or if an invoice was submitted after the 29^th day, 30 days after submission of the invoice, with final payment 45 days after completion. Mr. Frigo admitted that the plaintiff’s final changes were not accepted by Hady. He also admitted that Hady’s remedy for delay was as set out in paragraph 2 noted above.

25. The Hady form of contract was sent back and forth between the parties. Each time it was returned with changes by the returning party. Such exchanges occurred until some time in October when Mr. Frigo did not agree to the plaintiff’s last changes and never signed or sent the contract back. Nonetheless the plaintiff started and continued with its work as originally agreed to as well as the extras until January 20, 2004 when it completed its work and the extras it agreed to do.

26. On July 29, 2003 Post-Bid Addendum No. 2 was sent to Hady by the Architect. Mr. Savella testified that it had no effect on the steel work. I find that to be true if the Hady/Owner contractual terms were not incorporated into the agreement between the plaintiff and Hady. If they were incorporated as there were extensive contractual changes it would have applied to the plaintiff.

27. On Wednesday August 6, 2003 Frank Di Florio by fax advised Hady that the plaintiff’s price was based on structural drawings of April 24/03 but now it had received 2 new sets of drawings calling for extras for which a revised price would follow. Mr. Savella admitted that to be the case before me.

28. On Thursday August 7, 2003 Mr. Savella responded to the August 6, 2003 fax stating he was not aware of any changes except for cable bracing and asked for a price for cable bracing. In so doing he failed to differentiate between the requirements of the drawings upon which the plaintiff’s quote was based and the requirements of the new drawings such that he failed to respond to the plaintiff’s position except in relation to cable bracing.

29. The demolition to Building C raised stability issues requiring bracing by cables. Mr. Pickford placed calls to the plaintiff on August 12, 2003 and the prior week in order to get the plaintiff to put in place the temporary bracing. On August 6, 2012 Frank Di Florio by fax to Mr. Savella advised that he had been asked to supply and install the bracing which was not part of the plaintiff’s work and asked for a response. Mr. Pickford agreed it was an extra to the “contract” and stated he was advised by Mr. Savella that it was approved. At that point there was no paper work produced dealing with the changes as required by the Change Order Procedure in the Hady/Owner contract relied upon later by Hady as necessary for changes to the contract, that is a change order agreed to by the parties. On August 14, 2003 Frank Di Florio quoted to Mr. Savella a price for the cable bracing of $7,960.00 plus GST. On August 18, 2003 Mr. Pickford noted in the daily report that the plaintiff would not be on site to do the temporary bracing until August 20, 2003. Mr. Pickford testified that as a consequence the plaintiff held up the demolition work. His statement is not correct as the plaintiff had no obligation to respond to do the work as it was not part of the work agreed to. Further it was admitted on behalf Hady that absent a change order agreed to by both parties the plaintiff had no obligation to carry out any extra work. Discovery performed the work and was paid for it by the plaintiff.

30. By invoice #2003-0318 dated August 25, 2003, the plaintiff billed out $8,517.20 for the supply and installation of cable bracing. The terms of the invoice were that it was “Due Upon Receipt”. It was billed separately without reference to any contract. The payment terms were not the same or similar to the payment terms in the contracts exchanged by the parties or as set out in the subsequent accounts rendered by the plaintiff but was marked “DUE UPON RECEIPT”. On Thursday August 28, 2003 Hady prepared a document, CO-1 adding $7,960.00 to the contract price without GST on account of the supply and installation of the cable cross bracing to Building C. This was done after the work was completed and after the plaintiff had billed for it. The plaintiff did not sign this change order. Hady did not pay the invoice upon receipt but waited until October 16, 2003 to draw the cheque for payment of the invoice along with payment of invoice #2003-037 dated August 25, 2003.

31. On Thursday August 14, 2003 Frank Di Florio again by fax raised with Hady discrepancies over X bracing, horizontal bracing and column reinforcement initially raised on August 6, 2003. This issue was repeatedly raised by the plaintiff and by December 4, 2003 was still not resolved.

32. On August 15, 2003 the Owner’s representative became a virtual daily visitor on site such that the Owner at all times was aware of the progress of the improvement.

33. On August 22, 2003 Frank Di Florio advised Hady that steel erection was to begin on September 22, 2003. As it turned out Hady did not have the site ready for steel erection on that date and not until after October 6, 2003. Thereafter certain of Hady’s work required to be performed before steel erection took place was not completed or was completed deftly causing delays and extra work for the plaintiff.

34. On Monday, August 25, 2003 the plaintiff delivered iron channels to the site for the interior remediation work. Hady’s subcontractor was still carrying on demolition in both Buildings B and C.

35. By invoice #2003-0317 dated August 25, 2003, marked due September 25, 2003, the plaintiff billed out its first draw relating to drawings and anchor bolts inclusive of GST in the amount of $16,264.00.

36. On Friday August 29, 2003 the plaintiff delivered anchor bolts and leveling plates to the site. It was Hady’s responsibility to have them installed. The weather on site that day was overcast with several showers and at 15:00 pm dark clouds, lightning and thunder.

37. On Tuesday, September 2, 2003 the plaintiff commenced the remediation work to Building C. On the same day Hady poured footings and piers in Building C and the new addition. From then on until January 20, 2004 the plaintiff had men on site on a substantial number of the available working days doing remediation in Building C and Building B and from October 10, 2003 steel erection in the new addition.

38. On Tuesday September 9, 2003 Frank Di Florio wrote to Mr. Savella advising that as there were significant dimensional changes to the proposed addition evidenced by the new drawings received from the Architect on September 8, 2003 and that steel delivery would be delayed until “in and about week of Oct 6/2003.” He also enclosed the anchor bolt drawings for verification and return before fabrication could start. He again raised the X bracing issue arising from a change in the drawings made after the plaintiff’s quotation initially raised on August 6, 2003 asking to meet to discuss the unresolved extras as only the cable bracing extra had been resolved.

39. On Monday September 15, 2003 CC-8 was issued to Hady by the Architect based on site instruction #1 for changes in Building B and Hady in turn asked that the plaintiff quote the change. The plaintiff did at a price of $6,944.26 plus GST breaking out the amounts for steel, labour and erection.

40. On Tuesday September 16, 2003 Hady faxed revised structural drawings with dimensional changes dated September 3, 2003 to the plaintiff.

41. On Wednesday, September 17, 2003 Hady had not completed backfilling and had not started the leveling plate installation in the new addition.

42. The weather affected the plaintiff’s work. For example on Friday, September 19, 2003 the plaintiff had four men on site started working on joist reinforcing in Building C but had to stop due to windy conditions. Showers started at 08:00. and changed to heavy rain which lasted all day. Hady’s work preparing the new addition for steel erection did not start that day due to rain. It rained again on September 22, 2003. Eventually the rain resulted in the area of the new addition being saturated and when equipment was used on it became an area of churned mud.

43. September 22, 2003 was the day set out in the July 9, 2003 schedule for the start of structural steel erection for the new addition. Hady had not yet started leveling plate and anchor bolt installation which was a condition precedent to the start of steel erection.

44. On Tuesday, September 23, 2003 the demolition subcontractor hit a buried 200 gallon storage tank by the north west corner of Building C. The contents of the tank leaked out into the sand fill and had to be dealt with on an environmental basis.

45. On Thursday, September 25, 2003 Hady could not backfill the new addition. Hady’s consultant completed investigation and soil testing in the new addition as well as the top soil investigation at Building B.

46. On Thursday September 25, 2003 Frank Di Florio wrote to Mr. Savella stating that Delta Joists[^11]was still waiting approvals and dimensional changes before they could begin fabrication. He stated the drawings were submitted by the plaintiff on September 17, 2003 and to speed up the process he called McCavour and was advised Mr. Manton was reviewing the drawings and passing them on to the Architect for approval. He asked Mr. Savella to call him as soon as they were ready so he could pick them up. He went on to state there were significant field changes and discrepancies to the site anchor bolts which they received the prior week and which they were incorporating into their shop drawings as McCavour and Hady would not accept beam and joist repair work on site. As a consequence progress was delayed by the joist approval process and because of changes and discrepancies in site anchor bolts whose installation Hady was responsible for. Mr. Savella in testimony did not seem to understand the problem as the anchor bolts in his eyes had been delivered. The problem was not related to delivery of the anchor bolts but their placement by Hady which in turn affected shop drawings for fabrication of the steel.

47. By invoice #2003-0320 dated September 25, 2003, marked due October 24, 2003, the plaintiff billed out its second account relating to supply of steel for reinforcing of existing building, erection labour to install A/C units and repair work to existing joists in the amount of $48,235.00 plus GST. After deduction of 10% holdback, inclusive of GST the amount due was $46,450.31. Hady paid $46,450.31 on account of this second account by cheque dated October 24, 2003 which was deposited by the plaintiff on November 7, 2003. Mr. Savella admitted that payment was due 30 days from the date of receipt of the invoice.

48. On Friday, September 26, 2003 Hady’s sub-contractor hit a second 250 gallon used oil storage tank which was not marked on drawings and which had to be dealt with environmentally.

49. On Monday, September 29, 2003 there were rain showers at 13:30 pm. The sand fill from Building B used to backfill the area of the new addition was too wet.

50. Prior to erection of steel for the new addition the perimeter foundation had to be poured plus footings and piers. They went down about five feet below the finished outside grade. The trench for the perimeter foundation had to be backfilled on both sides after the concrete forms were removed. Next the inside area had to be filled and compacted. I do not accept Mr. Pickford’s assertion that there was no impediment to steel erection while the area of the new addition was backfilled. Steel erection requires a clear area within which to receive the steel and within which to erect the steel. Steel erection also requires a firm base upon which the scissor lift and crane used on this project could operate. I find you cannot in this location effectively erect steel while backfilling is ongoing. I also do not accept Mr. Pickford’s assertion that a granular base was not required until muddy conditions were encountered. If muddy conditions were waited for before application of gravel, there would be a delay in the steel erection because of the application of the gravel. In this project rain affected the backfilling. With rain, and there was rain, without a granular base the area of the new addition once the scissor lift and crane were used was churned up with the possibility of each being bogged down in the mud. This was the consequence of the lack of granular fill and caused delay in the execution of steel erection by the plaintiff.

51. For the steel to be erected in the new addition without delay and additional cost all conditions precedent had to be completed, namely, the concrete footings/piers and perimeter walls had to be formed and poured, backfilling of the walls had to be completed, underground storms and drains had to be installed, the area of the new addition had to be filled and topped with a firm granular base upon which the equipment could operate and where steel could be stockpiled and the leveling plates and anchor bolts had to be properly installed on the concrete footings/piers and perimeter foundations. This work was not complete at the end of September, 2003. On that basis I do not accept Mr. Pickford’s testimony that there was no impediment to steel erection at the time. This condition precedent work was not fully completed by Hady when steel erection commenced on October 10, 2003 in that there was no granular base, there were problems with the installation of leveling plates and anchor bolts, there were deficiencies in the installation of piers and foundations, and piers and foundations had yet to be addressed in respect of the new entrance and the loading dock area of Building C.

52. On Tuesday, September 30, 2003 the plaintiff had three men on site performing joist and beam reinforcement in Building C. Frank Di Florio visited the site. Hady’s subcontractor continued backfilling the new addition. Mr. Pickford called a subcontractor to start the underground storm drains/sewers in the new addition. The completion of this work also was a condition precedent to the start of steel erection in the new addition.

53. On Thursday, October 2, 2003 there were rain showers at 09:30 and 11:20.

54. The Hady contract as of October 2, 2003 was still being exchanged between Hady and the plaintiff with their respective changes. The contract had last been dropped off the prior week by the plaintiff. Also on October 2, 2003 Frank Di Florio by fax to Hady raised the issue outstanding since August 6, 2003 of extras for the changes in the drawings relating to X braces. He also stated that steel erection would start on October 10, 2003.

55. Hady responded on October 2, 2003 asking for a breakdown for the X braces charges specifically for labour, materials and how many tonnes of steel. On October 7, 2003 the plaintiff responded with the precise information requested by Hady. Mr. Savella in chief testified that the information which he requested and which was supplied “didn’t help him and that he did not reply.” I do not accept his testimony instead I find Hady decided to string the plaintiff along on this issue without replying.

56. On Friday October 3, 2003 the Owner and Hady had an onsite meeting at which time Hady advised the Owner that the November 30, 2003 completion date was pushed back to Christmas. No evidence was adduced before me from the Owner to demonstrate that the Owner objected to the change or that the plaintiff was advised of the change.

57. On Monday, October 6, 2003, Hady excavated and poured two pier footings for the new entrance to Building C and worked on storm sewers/drains the interior of the new addition.

58. On Tuesday, October 7, 2003 Hady formed and poured two main entrance piers and stair support piers.

59. Also on October 7, 2003 Frank De Florio advised Mr. Savella that steel erection would begin on October 10, 2003 or sooner. He also attached a request from Delta Joists asking for direct payment from Hady within 40 days with no holdback. Mr. Savella responded the next day that Hady would make the cheques payable jointly to the plaintiff and Delta Joists but would not waive the holdback.

60. Despite that any delay in steel erection to this point in time was the fault of Hady, Mr. Savella on October 8, 2003 stated they required a full schedule and that joist by the end of the following week was late and unacceptable. His request for a full schedule corroborates the plaintiff’s position that there was no agreed to schedule in place for its work. Mr. Savella also had the chutzpah to state that the plaintiff’s lack of steel delivery had jeopardized their schedule. The reality was that Hady had failed to fulfill its conditions precedent to steel delivery and was the party at that point in time jeopardizing their schedule.

61. On Thursday October 9, 2003 Frank Di Florio by fax advised Hady to ensure the site conditions were good to receive steel as the plaintiff was starting steel erection on October 10, 2003. He also requested an ultasound test for two columns on site on October 14, 2003.

62. On Friday, October 10, 2003, the plaintiff commenced steel erection in the new addition and continued joist and beam reinforcement in Building C.

63. On Friday October 10, 2003 Construction Review Report #6 was issued.

64. On Tuesday October 14, 2004 it rained. Ultrasonic testing was carried out on six columns and the splice welds were rejected. Mr. Pickford advised that McCavour had to comment on the method of repair pror to the work being done to correct the 6 columns.

65. Also on October 14, 2003 Mr. Frigo by letter forwarded the Hady Contract in duplicate to the plaintiff setting out further changes and asked that the changes be agreed to by initialing and that both copies of the Hady contract be returned to Hady. At this point the parties still had not agreed to a written contract for the work undertaken by the plaintiff which was in progress. The contract was returned with further changes by the plaintiff which Mr. Frigo did not accept nor did he further sign back the contract.

66. On Wednesday, October 15, 2003, Discovery had two men on site but work was not started because of high winds.

67. Also on October 15, 2003 Mr. Pickford wrote to McCavour concerning an existing twisted column in Building C asking if it was acceptable.

68. On Thursday, October 16, 2003, the work continued and the plaintiff had eight men on site. One trailer of structural steel and two loads of joists were unloaded. Several columns were erected in the new addition. Joist and beam reinforcement work took place in Building C. A shop welder was on site dealing with the six rejected columns. Discovery was ordered to stop work and to provide the scissor lift and labour to assist the inspector to check all of the columns using ultra sound. Frank Di Florio by fax to Mr. Savella complained that there was delay as the erectors could not erect steel because concrete was in there way and anchor bolts needed to be installed. He also reminded Mr. Savella that if he wished the cross bracing that was priced to send a purchase order. The fax went back and forth with handwritten responses. The last was an advice that field repair work would begin immediately and taht a sketch of the repair work would be issued by the plaintiff’s engineer.

69. On Friday, October 17, 2003, the plaintiff’s forces welded X bracing and anchor plates in Building B at Line 5 and continued with erection structural steel in new addition. Mr. Pickford stopped the work to carry out an inspection of their certification. He had the responsibility to ensure thatthe workmen on site were properly qualified but it was an open question why he carried out the inspection at this time as work had been on going for some time. Mr. Pickford complained that the plaintiff’s forces could not produce proof of fall arrest training, scissor lift training and safe rigging and hoisting training. To avoid the one and half hour delay he should have given advance notice that the certification would be required. McCavour responded to Mr. Pickford that the twisted column in Building C could stay but the concrete slab on grade had to be replaced.

70. By cheque #209603 dated October 16, 2003 Hady paid $13,680.00 on account of invoice #2003-0318, dated August 25, 2003, in the amount of $8,517.20 for the extra for the supply of cable bracing and on account of invoice #2003-0317 in the amount of $14,637.60. The payment was not received until October 27, 2003 by the plaintiff. The payment terms of invoice #2003-0318 were “Due Upon Receipt” such that Hady’s payment was over two months overdue. The payment in respect of invoice #2003-0317 was over a month overdue. The plaintiff’s September 25, 2003 invoice was not paid as yet although Mr. Savella admitted it was payable within 30 days.

71. Photographs taken by Mr. Bishay were put in evidence which corroborated the muddy site conditions encountered during steel erection which adversely affected the progress of the steel erection as well as uncompleted Hady work a condition precedent to the plaintiff’s work. Picture #1 of the new addition area depicts the mud and rutting caused by the scissor lift and crane because of the lack of granular material. Picture # 2 is similar with a portion of the crane at the top right. Picture #3 taken later shows a loading dock with erected steel with a missing concrete pier under the left door column. Picture #4 again depicts the pooling of water, mud as well as the crane before gravel was spread in the new addition. Picture #5 shows a column suspended with a missing footing under it with a column laying flat to be positioned beside the existing column once the footings was rectified. Picture #6 shows a bent anchor bolt which had to be straighten. Picture #7 depicts the muddy conditions as a consequence of no gravel being laid down. Picture #8 is taken at the location of the new entrance showing the roof deck still in place preventing steel erection for four to five hours while the deck was removed incurring wasted labour and crane time. Picture #9 shows a footing/foundation which was installed too low. Picture #10 demonstrates that the column on right is higher or the one on left is lower because the foundation/piers were not installed at the same level. Picture #12 depicts a column in the air because of a missing concrete footing. Picture #13 is the same as Picture #4 of a submerged column base. Picture #14 is the same as Picture #9; Picture #15 is the same as Picture #1. Picture #16 shows the wet conditions and the difficulty in locating the crane in the driest spot available. The photographs corroborate the following conclusions: a) uncompleted concrete footings/foundations or that they were poured too low, b) wet and muddy site conditions not suitable for scissor lift or crane use because of the absence of granular material, c) bent anchor bolts for columns, and d) the failure to remove the roof deck in advance of steel erection all of which were Hady’s responsibility and all of which should have been completed before steel erection took place.

72. Because of Hady’s failure to put down gravel in the new addition the site conditions deteriorated with the rain and at one point the scissor lift was stuck in the mud. The use of the scissor lift, crane and truck delivery of steel were adversely impacted.

73. Also on October 17, 2003 Discovery sent a fax to Frank Di Florio listing 7 problems and potential charge backs: anchor bolts bent and too short, site condition not suitable for erection as no gravel on grade and some column bases submerged in water, one column base missing B13, 16 base plate anchor holes were smaller than the anchor bolts, six rejected erected columns were unbolted, loaded and sent back, and beam D16 was six inches too short. The first two were exclusively Hady’s responsibility.

74. On Saturday October 18, 2003 the Plaintiff instructed Discovery to stop steel erection in the new addition but the remediation work continued. The work did not resume until October 27, 2003. The underlying reasons for this decision were that the site conditions in the new addition were not acceptable for steel erection and the plaintiff’s invoices were not being paid by Hady within 30 days as acknowledged by Mr. Savella to be the agreement.

75. On Monday October 20, 2003 Frank Di Florio advised Mr. Savella that Hady would be charged as an extra for labour and crane time because anchor bolts were bent and too short and because the site conditions were not suitable for erection. He also stated he would inspect the site the next day to see if it is ready for erection. Also by a second letter to Mr. Savella and copies to McCavour and the Architect, Frank Di Florio raised additions to the contract not included in the original quote and drawings which the plaintiff was verbally instructed to proceed with totaling $44,760.39 plus GST and asked for a purchase order for the same. He also state that the plaintiff does not consider “CCO and CCN a means to proceed without a Purchase order.”

76. On Tuesday October 21, 2003 the plaintiff advised Mr. Savella that payment was overdue by $71,231.5 and if not paid by October 23, 2003 all work would cease. The plaintiff had four men on site doing joist and beam reinforcement in Building C. The rain started at 4:00 pm.

77. Also on October 21, 2003 the plaintiff received CCO-16 directed to Hady for X bracing over and above existing extras based on new drawings and priced it at $8,852.71.

78. On Wednesday October 22, 2003 Construction Review Report #7 was issued. Items 3 and 4 related to anchor bolt deficiencies which adversely affected steel erection and were Hady’s responsibility. Item 5 also identified a deficiency relating to a void between the base plate of the column at A4-9 and the leveling plate again a Hady responsibility caused by the foundation pier poured too low.

79. On October 22, 2003 ultrasonic testing determined that the six repaired columns passed.

80. On Thursday, October 23, 2003 Mr. Pickford by fax complained hat there was no ongoing structural steel erection in the addition. The plaintiff’s response was that there would be no steel deliveries until the $71,231.51 cheque was received. ,

81. On Friday, October 24, 2003 Mr. Pickford sent a number of faxes. In one he advised that because of delay they were into winter conditions. In another he asks for the plaintiff to do roof openings on an expedited basis. The roof openings were confirmed by Mr. McCavour not to be part of the original plans that formed the basis of the plaintiff’s quotation. The work constituted an extra which had not been priced or agreed to by the plaintiff and as such was not required to be done by the plaintiff. Mr. Pickford ignored the Change Order Procedure which Hady asserted was binding on the plaintiff. This was another example of Hady when it suited its needs of ignoring terms and conditions which it sought to hold the plaintiff to.

82. On October 24, 2003 Frank Di Florio forwards results of the ultrasonic testing to both Mr. Savella and McCavour.

83. By invoice #2003-0323, dated October 24, 2003, the plaintiff billed out it third draw relating to supply of steel for the new addition in the amount of $152,888.50 plus GST. After deduction of 10% holdback, inclusive of GST the amount due was $147,231.63 payable within 30 days.

84. By cheque #209660, dated October 24, 2003, Hady paid invoice #2003-320 in the amount of $46,450.31. The actual payment was not received by the plaintiff until early in November 2003. The invoice was marked due October 24, 2003 and the cheque was drawn within 30 days but not handed over until a few weeks later. I find that Hady accepted that payment was due within 30 days but that it breached this term of its agreement with the plaintiff.

85. On Monday October 27, 2003 the plaintiff restarted structural steel erection in the new building. The six rejected columns were returned to the site and a load of steel was delivered. It started to rain at 16:00.

86. On Tuesday October 28, 2003 the steel erectors left at 2:00 pm as they could not move their scissor lift through the rough terrain and mud. Hady’s forces pumped water from the new addition. Mr. Pickford faxed Sandy Di Florio asking for a completion schedule. In another fax sent at 18:03 that day he advised that he was having stone placed on the bulk of the new addition the next day starting at 07:30 and complained that the steel erectors had not moved all the structural steel blocking the back fill subcontractor’s pathway into the building.

87. On Wednesday, October 29, 2003 Hady spread gravel in the new addition and then placed and compacted 2 inches of limestone crushed run. This work prevented the steel erectors from working.

88. On Friday, October 31, 2003, there was an on site meeting scheduled by Mr. Pickford involving him, Frank and Tony Di Florio, the owner’s representative and four other sub-contractors.

89. The plaintiff delivered a letter to Hady on Monday November 3, 2003 from Tony Di Florio giving a November 7, 2003 date for erection of the steel in the new addition and November 14, 2003 for completion of the remediation work based on a response from Discovery. He went on to ask for payment stating Frank Di Florio had been around three times to get the monies due by the end of October, 2003 but that payment was not made. No reason or explanation was given by Hady for drawing a cheque on October 24, 2003 for payment of an invoice due that day but then withholding it from the plaintiff and putting the plaintiff through hoops and a waste of time to obtain payment.

90. Discovery brought in D & K Welding as its subcontractor to expedite the work.

91. Hady’s cheque #209660, dated October 24, 2003 was deposited by the plaintiff on November 7, 2003

92. On Monday November 10, 2003 Construction Review Report #8 was issued. Among other findings it set out that all columns, all but six roof beams, some girts, some vertical cross bracing and roof joists had been erected but the roof joists had not been spread. The bolts for the vertical cross bracing and for beam to column connection were not complete. The six rejected columns were re-spliced, tested and accepted. Excavation for the new piers at A-B1 and A-16a (new loading dock area) had been completed. Noted therein was that deficiencies at Item 3 of Report #7 were still outstanding and that no review was conducted of Items 4 and 5.

93. On Tuesday, November 11, 2003 it rained and as a consequence there was no structural steel erection. Notwithstanding Mr. Pickford advised by fax that based on the last schedule from plaintiff he was scheduling a steel inspection for the afternoon of November 14, 2003[^12] and metal decking work for November 17, 2003. At the same time the owner’s representative and a representative of the Brick were on site urgently requesting a completion schedule.

94. On November 11, 2003 Frank Di Florio again wrote to Mr. Savella concerning x-bracing originally raised on August 6, 2003. He confirmed that the original quote for the work not shown on the drawings was $16,500 plus GST but as the plaintiff had now received CCO-16 on October 21, 2003 with changes the revised price was $23,828.00 plus GST.

95. On Wednesday, November 12, 2003 Mr. Pickford faxedTony Di Florio that D & K Welding did not have authorization to erect structural steel at the loading dock and that nine working days were required to correct structural steel fabrication errors, plumb, torque and bridging. He stated that the work would extend the completion date to November 25, 2003.

96. On Thursday, November 13, 2011 there were very high winds and snow and rain started at 09:30. The only structural work done because of the weather was to tie down the joists.

97. On Friday, November 14, 2003 structural erection started in the new addition but stopped at noon as a consequence of wet conditions due to snow. By Fax to Mr. Savella Frank Di Florio set out a new schedule stating that the entrance erection would start on November 19, 2003, x bracing to be finished by the following Wednesday or Thursday and the addition could receive the deck by November 19, 2003. Mr. Savella responded that the dates were bogus dates, that project was delayed and the delivery of the building to the owner was jeopardized.

98. On Saturday November 15, 2003 Mr. Bishay took a photograph of the state of the steel erection in the new addition which was introduced as Exhibit 3. At that point the steel in the new addition only needed to be plumbed and leveled. It was ready for the roof decking to be installed.

99. During the week of November 17, 2003 Hady pressed and accused the plaintiff of not proceeding with the work and stated that plaintiff would be held responsible for the delay. At the same time Hady had not completed its work which was a condition precedent to the erection of steel in the loading dock area and the new entrance.

100. On Tuesday November 18, 2003 Hady’s subcontractor formed, installed the re-bar and poured four piers as required by CCO-3 and 7 directed to Hady by the Owner. CCO-3 was dated August 19, 2003 and based on a CCN-S2 dated August 18, 2003. The piers were a condition precedent to the plaintiff’s work.

101. On Friday, November 21, 2003 Hady’s subcontractor formed and poured the loading dock base slabs which were a condition precedent to installation of the structural steel at the loading dock.

102. On Monday, November 24, 2003 the structural steel for the front entrance was delivered and erection of structural steel started for the loading dock in Building C.

103. By invoice #2003-0325 dated November 24, 2003, the plaintiff billed out it fourth draw on the contract relating to supply of steel for the new addition in the amount of $38,808.84 plus GST. Included in the invoice was a charge for three extras, for sheets # 1 to 5, X Bracing and reinforcement of extra joists for a total of $44,859.79 plus GST. After deduction of the 10% holdback, inclusive of GST, the amount due for the fourth draw and extras was $80,572.89 payable within 30 days.

104. On Tuesday November 25, 2003 Mr. Bishay by fax to Hady and the plaintiff stated that it was charging an extra for crane and labour of $650.00 plus GST because on November 25, 2003 the site was not ready for work at the loading dock because of excavation and other activities at the loading dock area. Mr. Pickford countered by stating there was adequate room to erect the loading dock steel but stated that due to inadequate details on the plaintiff’s drawings Hady had to quickly remove existing wood blocking to allow for the erection of beams. The plaintiff was not responsible for construction drawings only for its shop drawings. It was Hady’s responsibility to provide the drawings setting out where the steel was to be erected in the loading dock area and how it tied into the existing building and what demolition was needed to accommodate the steel. I accept Mr. Bishay’s version of the events.

105. On November 25, 2003 Mr. Pickford noted in the Daily Report for that day “The Brick wants a schedule. I cannot give a schedule due to structural steel and slab CCO’s not approved.”

106. In the last week of November, 2003 Hady hard pressed the plaintiff to complete its work by December 5, 2003 even threatening to complete the work and stating to D & K Welding that “Hady Construction will pay D &K’s expenses to complete the structural repairs and to complete all other structural work as per contract drawings.” Hady never made the payment to D & K Welding.

107. It rained on both Thursday November 27, 2003 and Friday November 28, 2003. On the Friday all trades were rained out.

108. The Metro November 29, 2003 report disclosed in item number 4 that the columns were out of alignment. Discovery corrected the problem by slotting the bases. Mr. Bishay testified it was not a problem and I accept his evidence. At this point in time the columns and beams were installed in the new addition with the roof deck installation on going. Any problems respecting the joists could be rectified after the roof deck was in place.

109. Tony Di Florio on December 1, 2003 threatened to pull his forces off the job if the outstanding progress payments of approximately $180,000.00 were not paid. On the same day the roof deck installation was completed in the new addition. Hady made no effort to pour the slab in the new addition after the roof deck was installed until the beginning of February, 2004 although it could have done so. Mr. Pickford could not provide any real explanation as to why the slab was not poured in the new addition.

110. Mr. Savella admitted that the July 9, 2003 Hady schedule was amended a few times but none of the amendments were produced. The inference is and I find that as they were documents within the control of Hady they would not have assisted Hady in its delay claim. Hady produced an amended schedule for the improvement dated December 1, 2003 and was fully aware of the progress of the improvement to that date. It was not produced until Mr. Caranci’s testimony after Hady’s principal witnesses had testified The plaintiff was not consulted about the entries for its work under the headings “Structural Steel” and “Steel Repairs”. A comparison of the duration and completion time in the December 1, 2003 schedule with those in the Hady July 9, 2003 schedule discloses the following:

(a) It set out the start of structural steel on November 10, 2003 and completion by December 12, 2003. Duration of work was increased from14 to 25 days. Structural steel work actually started on October 10, 2003 rendering this schedule inaccurate for this work except for setting out a prospective completion date of December 12, 2003 determined in some undisclosed fashion unilaterally by Hady.

(b) Steel repairs had a start date of November 3, 2003 and completion date of December 12, 2003. Duration of the work was reduced from 30 days to 15 days.Steel repairs started back in September 2003 rendering this schedule inaccurate for this work except for setting out a prospective completion date of December 12, 2003 also determined in some undisclosed fashion unilaterally by Hady.

(c) Start of the metal deck on November 27, 2003 and completion by December 2, 2003. Duration of work was increased from 4 days to 6 days.

(d) Start of existing roof repairs on November 17, 2003 and completion by December 9, 2003. Duration of work was increased from 5 days to 17 days.

(e) Start of roofing on the new addition on December 8, 2003 and completion by December 17, 2003. Duration was increased from 8 days to 10 days.

(f) Start of roof flashing on January 5, 2004 and completion by January 19, 2004. Duration of work was reduced from 18 days to 11 days.

(g) Start of structural studs on December 4, 2003 and completion by January 16, 2004. Duration of work had increased from 24 days to 32 days although there were additional days provided in item 24 for the new addition. Structural steel studs had started much earlier and as such the schedule was inaccurate.

(h) Install of windows was scheduled to start on December 15, 2003 with completion on January 16, 2004 an increase from 5 days to 25 days.

(i) Curbs and walks were scheduled to be completed on December 5, 2003 with the original completion date being October 21, 2003.

(j) Paving was scheduled for completion on December 19, 2003 with the original completion date being November 7, 2003.

(k) Landscasping was scheduled for completion on April 30, 2004 with the original scheduled completion date November 3, 2003.

The new schedule set out, inter alia, a new completion schedule for that of November 30, 2003 as set out in Hady’s unsigned contract with the Owner in respect of work not dependant on the plaintiff’s work including existing roof repairs, curbs and walks, paving and landscaping all the responsibility of Hady. No evidence was tendered before me as to the Owner’s position on this delay other than the unproven claim of the Owner set out in its letter of August 5, 2004.

111. At the same time as Hady extended the time for completion of its other work Mr. Savella wrote two letters to the plaintiff. In one, which appears to be in response to Tony Di Florio’s threat of that day to pull off the plaintiff’s forces because of non-payment of invoices, he took issue with dates supplied by the plaintiff for the completion of the structural steel sent on November 14, 2003. He went on to complain about requests for payment. I find that the one goes with the other. Hady knew it was not paying the plaintiff’s invoices as agreed to and as requested, knew from past communications respecting the plaintiff’s subcontractors that there would be financial pressure on the plaintiff but nonetheless decided not to pay the plaintiff but still expected performance from the plaintiff. Mr. Savella then stated that the Di Florio’s refused to talk with him by telephone exactly the same position taken by the Di Florio’s in respect of failure to pay. The letter ended with the statement “We have taken the initiative to have this work completed and you will be held responsible for all costs incurred.” Up to January 20, 2004 the date when the plaintiff completed its work Hady took no such steps. The second letter dealt with CCO’s and the purported failure of the plaintiff to “properly quote all requested changes. By this time Hady knew the Change Order Procedure did not apply to the plaintiff as there was no signed back agreement by Hady accepting the plaintiff’s changes to its proposed contract. The plaintiff supplied quotes for extra work by breaking down the quote into cost of steel, labour, erection and provincial sales tax as originally requested by Hady. Thereby the plaintiff provided more information than it did for its original quote. Hady subsequently wanted “weight, hours of installation, hourly rates, etc.” none of which the plaintiff agreed to supply. Once Hady requested the work to be done which the plaintiff had quoted Hady is deemed to have accepted the work as quoted. By insisting on having the quoted work done Hady cannot after the fact contest the price by requesting further information.

112. Thereafter Hady and the Owner met. Hady produced a new timetable dated December 1, 2003 for allegedly the remaining work on site. The plaintiff was not invited and there was no input sought from the plaintiff about the feasibility of the new timetable vis-à-vis the steel work. The Owner’s concern was for a smooth finish to the slab in the new addition and secondly that the completion date was too far away but it did not set or insist on an ultimate completion date. The Owner was fully aware of the progress of the improvement because of its on site representative. Hady let the Owner’s tenant in to install electrical conduit and boxes in the floor of the new addition on December 12, 2003. The work was not completed until January 5, 2004. The work delayed the pouring of the concrete slab in the new addition. On this basis I find that the Owner agreed to the new timetable as modified by letting it’s tenant in to do work in the new addition.

113. Also on Monday December 1. 2003 OC by fax quoted to Hady its price of $38,000.00 for scaffolding, tarp, heaters and fuel for completion of the stucco in winter conditions.

114. On Tuesday, December 2, 2003 Hady’s subcontractor laid down ¾ inch limestone in the new addition which formed the base for the concrete slab. No issue was raised at the time about frozen ground in the new addition.

115. Also on Tuesday December 2, 2003 McCavour conducted an inspection and then issued its Inspection Report #9 dated December 8, 2003. The Report stated that as of December 2, 2003 the roof of the new extension was 90% complete.

116. On Wednesday December 3, 2003 there was an on site meeting attended by Frank and Tony Di Florio, Mr. Bishay and Mr. Ehab from Discovery and Mr. Pickford. It was the plaintiff’s position that the anchor bolts were installed incorrectly and Hady responded by having a survey done on December 4, 2003. A December 10, 2003 completion date was given by the plaintiff assuming no problems. In his confirming fax Mr. Pickford took the completion date to encompass all change orders although they had not been agreed to by the plaintiff. In addition he stated it included all fabrication errors but apparently did not include deficiencies.

117. On Thursday Frank Di Florio confirmed the meeting and listed 10 items which were discussed. Hady was directly responsible for preparing the new entrance site so steel erection could take place. Another Hady issue was that relating to the anchor bolts and the pending survey. He ended by confirming the December 10, 2003 date with these concluding words: “… as long as site is ready to receive steel and no other changes occur. This doesn’t include any upcoming change work orders.” In addition he sent another fax stating that anchor bolts were installed incorrectly and that he would like a solution as it is not the plaintiff’s work and may require a change order.

118. On Friday December 5, 2003 Tony Di Florio advised that as he had not received the anchor bolt report by 15:30 the columns would not be dealt with by Wednesday December 10, 2003. At 18:41 the survey was faxed by Mr. Pickford to the plaintiff asserting that none are 2 inches out of line. Nonetheless the survey shows that anchor bolts are out of line and have to be corrected. At 19:48 Mr. Pickford sent another fax stating that the plaintiff would be held to the deadline and that even if slotting was necessary by the plaintiff four hours was sufficient. The work cannot be imposed on the plaintiff butmust be agreed to be done and the price agreed to. Hady’s position again was that if it suits us we follow the Change Order Procedure and if it doesn’t we do not but in either case the plaintiff must do what we tell them notwithstanding there is no agreement for the additional work between Hady and the plaintiff.

119. Mr. McCavour confirmed that the report indicated that the columns were out of line because of the anchor bolt installation and that the anchor bolt errors could be corrected in the field with several hours work. He also stated that “If modified in field expect engineer to be hired and take responsibility for the modification.” This would be Hady’s responsibility and not the plaintiff’s.

120. The plaintiff makes a number of calls to Hady requesting payment for Draw #3 for $147,231.63 invoiced on October 24, 2003. Hady had received payment for this work from the Owner. Hady failed to make payment within 30 days of October 24, 2003 putting the plaintiff under financial pressure.

121. On Monday December 8, 2003 and Tuesday December 9, 2003 Hady’s flooring subcontractor forms and pours the new front entrance and loading dock slabs a condition precedent to the plaintiff’s steel erection in both areas. This concrete pour corroborates that there was no impediment such as frozen ground to stop the slab in the new addition from being poured.

122. Also on Monday December 8, 2003 OC faxed a follow up letter to their December 1, 2003 quote for winter conditions advising that it has “been almost two weeks that we have stopped working with the scissor lifts” and that Hady’s delay in responding is going to effect their ability to deliver the wok as scheduled. Other than the timetables no evidence was produced before me as to what schedule was agreed to between Hady and OC. The evidence from the Daily Reports indicates that their work was not carried out in accordance with either schedule.

123. Also on Monday December 8, 2003 Construction Review Report #9 was issued. Amongst other notations it set out that the structural steel columns, beams, joists, bridging lines and girts for the new addition had been erected and that the roof deck for the new addition was approximately 70 % complete. It then updated the deficiencies from the prior reports to the extent they had been addressed and highlighted new deficiencies.

124. On Tuesday December 9, 2003 Mr. Bishay by fax to the plaintiff advised that Discovery attempted to start work on the new entrance framing but that activities in the same area including concrete pouring without notice to Discovery caused Discovery to cancel the crane, incur extra charges for the crane and delayed Discoveries work. There were anchor bolts missing at the front entrance and the slab had to be addressed as the result of a change order with the result that Discovery could not proceed with its work.

125. The roof deck on the new addition was completed on December 1, 2003 but the inspection, the responsibility of Hady was delayed until December 10, 2003 when Metro Inspection conducted the inspection and passed it. Also on December 10, 2003 D. & K. welding completed their subcontract with Discovery. On the same day Tony Di Florio advised Mr. Savella by fax that he refused to take Mr. Di Florio’s calls the previous day, that the plaintiff had suppliers calling for payments, that the steel was on site and that the plaintiff’s forces were working but that Mr. Savella was refusing to address payment for the previous month’s draw in the amount of $80,572.89. The prior draw also was unpaid. No reasons were given for non-payment at the time.

126. On Wednesday December 10, 2003 Construction Review Report #10 was issued based on an inspection conducted on December 6, 2003. It noted the progress of the improvement and the outstanding and new deficiencies.

127. On Thursday, December 11, 2003 Hady’s subcontractor formed and poured sidewalks at the main entrance demonstrating that it was still warm enough to pour concrete.

128. Mr. Pickford stated the original plan was to pour the slab in the new addition and then let the Owner’s tenant the Brick in to saw cut the floor and install electrical conduit and boxes. He understood that thereafter there was an agreement between Hady and the Owner to expedite the Brick’s involvement and that he received a verbal instruction to let the Brick in. On Friday December 12, 2003 Mr. Pickford let the Brick’s electricians in to lay electrical conduit and electric boxes in the floor of the new addition with the result that the concrete slab could not be poured until they completed their electrical work. There was no explanation put forward by Hady as to why the slab could not be poured immediately after December 2, 2003 the date when the interior of the new addition was ready for the pour. I find that the only explanation is that the pour was delayed to accommodate the Brick’s electrical work in the floor of the new addition.

129. On Monday, December 15, 2003 Discovery was again delayed at the new main entrance. Hady had failed to remove the old roofing in order to permit the erection of the new main entrance structural steel.

130. On Monday December 15, 2003 by letter to Mr. Savella the Architect stated, referring to the December 1, 2012 schedule presented at the construction meeting on December 2, 2003, that as a consequence construction was delayed into winter conditions and that Hady had to do everything necessitated by such conditions particularly in relation to the pouring of the slab and enclosed a December 12, 2003 from McCavour about cold weather concrete pouring. Mr. McCavour testified that didn’t care how it was done as long as the specifications were met at the end of the day. The December 12, 2003 McCavour fax was not produced.

131. On Tuesday, December 16, 2003 Hady’s subcontractor poured concrete curbs again demonstrating that concrete could be poured up to December 16, 2003 the date set out in the December 1, 2003 timetable for the pouring of the slab in the new addition..

132. On Wednesday December 17, 2003 D & K Welding Inc. advised Mr. Bishay that their contract called for 50% payment upon completion but no payment had been made although their work was completed on Wednesday December 10, 2003. Mr. Bishay attempted to obtain payment from the plaintiff but in the end had to register a claim for lien. On December 17, 2003 he wrote to D & K Welding stating he had not received payment from the plaintiff but nonetheless made a payment to them of $11,700.00 to show good faith and assured them that Discovery would pursue legal action to protect itself and its subtrades.

133. On Thursday December 18, 2003 William Pickford by fax forwarded to Tony Di Florio Construction Review Report No. 10 dated December 18, 2003 from McCavour Engineering Limited listing deficiencies but also confirming that steel erection was substantially complete.

134. On Monday December 22, 2003, William Pickford sent a deficiency list of 10 items to Don Frigo with a copy to Tony Di Florio. Mr. Di Florio agreed on cross-examination that the deficiencies were outstanding as of that date and had to be completed but also that the structural steel was all up such that the other following trades were not prevented from carrying out their work. By January 20, 2003 the deficiencies were corrected.

135. Also on December 22, 2003 the plaintiff (FD) sent to Hady a list relating to seven CCOs setting out its position in respect of each and enclosing quotations for three.

136. Also on Tuesday December 23, 2003 Hady issued and certified certified cheque 210245 dated December 23, 2003 for the payment of invoice #203-0325 but did not release it to the plaintiff.

137. On Wednesday December 24, 2003 McCavour by fax advised Mr. Pickford that the gaps between the base plate and leveling plate on the columns were reviewed and gave instructions as to how to deal with the gaps. The work was Hady’s responsibility and affected the pluming of the steel by the plaintiff with the attendant delay the responsibility of Hady.

138. On Monday December 29, 2003 OC billed Hady for 60 % completion of its work.

139. After December 12, 2003 the weather was variable below and above 0^oC until December 21, 2003. On December 22, 2003 the temperature rose to 7^oC and remained that way until the end of the year. No work took place on December 23, 2003 as the plaintiff and a few other subcontractors were rained out. On Monday December 29, 2003 it started raining at noon and stopped at 08:30 the next day. During the period it appeared that the slab in the new addition could have been poured. There was no evidence tendered by Hady before me to show that the ground in the new addition was frozen during that period. During the period the plaintiff carried on with its work at the premises including Saturdays except for a gap between Wednesday December 24, 2003 and Monday December 29, 2003.

140. On Monday January 5, 2004 the Brick’s electricians returned to complete the installation of electrical conduit and boxes in the new addition. In the result the pouring of the slab was delayed until after January 5, 2004 by their admittance. No evidence was adduced by Hady before me as to whether the ground was frozen by that time in the new addition.

141. The Brick’s electricians returned on Wednesday January 7, 2004 to do work which was described in the Daily Report for the day as the installation of conduit and boxes in the north east slab cut out existing building.

142. From December 31, 2003 to January 20, 2004 .the plaintiff’s forces continued with the plaintiff’s work on the premises.

143. On Wednesday January 7, 2003 Construction Review Report #11 was issued based on an inspection by Mr. Manton on January 6, 2004 carried out in the presence of Mr. Pickford. It noted the progress of the work and reviewed past deficiencies and new deficiencies.

144. On Monday, January 12, 2004 Hady responsed to the plaintiff’s December 22, 2003 fax relating to seven change orders.

145. On Tuesday January 13, 2004 Discovery register its claim for lien. Discovery’s solicitors faxed a copy of the claim for lien to Hady as well as a section 39 demand for information.

146. On Thursday January 15, 2004 Mr. Savella by fax advised the plaintiff that as a consequence of Discovery’s claim for lien Hady would not make further payments to the plaintiff until the lien was lifted and in turn Hady would not be receiving any further payments.

147. As well on January 15, 2004 at 14:48 Metro sent to William Pickford an inspection report as requested for the inspections carried out January 10 to 14. It lists deficiencies including deficiencies to base plates the responsibility of Hady. I accept Mr. Bishay’s testimony that onlt some of the deficiencies related to Discovery’s work, that those deficiencies were rectified and that those deficiencies did not hold up any following trades

148. On January 16, 2004 William Pickford sent a Fax to Tony Di Florio at 18:33 with a copy to Mr. Savella, J Gagnon, and D. Manton attaching the report dated January 16, 2004 from Contract Survey regarding existing column lines. He then states “verifying our conversation, there will be a 50/50 split in costs to plumb the 4 front entrance columns between the Owner and GTA. In addition he asked that the plaintiff proceed with the reinforcement work as detailed on Hady’s CCO-27 from the Owner on the basis that it is a no cost change. The plaintiff given non-payment of its invoices did not agree to do this work.

149. By invoice #2004-403, dated January 16, 2004, the plaintiff billed out for extras $13,418.671 plus GST for the supply and installation of various extras. After deduction of 10% holdback, inclusive of GST, the amount due was $12,922.12, payable in 30 days. Shows it relates to CCO and other extras as set out. Also shows Contract amount of $248,500 + X Bracing $7960 = $256,460 + GST $17,952.20= $274,412.20.

150. On Tuesday, January 20, 2004 the plaintiff completed its work at the lands and premises. Metro Inspection Services Ltd. by Fax on January 20, 2004 sent to the plaintiff a copy of their inspection report dated January 20, 2004 relating to their inspection of even date of the quality of the field welding and the erection of the structural steel and steel deck. The report stated that the erection of the structural steel, open web steel joists and steel deck has been completed satisfactorily and that the deficiencies were repaired satisfactorily save for two deficiencies. The first related to horizontal bracing at the existing building area 12-A-G which detail was under review and a change was to be made. This was an extra which the plaintiff had quoted but as they were not being paid chose not to agree to do the work.. The second related to cut anchor bolts in respect of four columns which required the installation of new anchor bolts which was Hady’s responsibility.

151. On various occasions during the remedial work and erection of steel, the plaintiff did not have material on site which served to delay Discovery’s work being carried on behalf of the plaintiff. Nonetheless steel erection was completed within approximately 14 ½ weeks of its start on October 10, 2003.

152. Thereafter Hady’s forces worked to cover roof openings. On Wednesday January 21, 2004 Hady’s forces placed three quarter inch plywood over roof and building openings in order to be able to heat Building C and the new addition to facilitate the pouring of the slab. Other subcontractors worked to install gas lines and electricity so that the permanent roof top units could be used to assist in the heating of Building C and the new addition.

153. On Wednesday January 21, 2004 Sandy Di Florio by Fax to Mr. Savella (who acknowledged receipt of it) enclosed the paperwork for the project including the final inspection report by Metro Inspection Services Ltd. dated January 20, 2004 for the structural steel, and advised that the documents for the removal of the lien were being prepared in exchange for payment of the October and November draws in the amount of $227,804.52. He further advised that the original documents would be hand delivered.

154. On Thursday January 22, 2004 the plaintiff by letter by fax to the Owner advised that both Draws #3 and #4[^13] had not been paid by Hady notwithstanding Hady had received payment from the owner. The plaintiff went on to set out that an agreement had been reached between the plaintiff, Hady and Discovery that the two draws would be paid in exchange for the removal of the construction lien registered on title and a statutory declaration confirming that Discovery had been paid in full. The letter went on to state that as of that day Mr. Savella stated Hady would only pay $80,572.89 on account of draw #4 and then the plaintiff would be paid up to date. The letter went on to ask for the owners intervention to bring about a resolution and advised that there was a meeting scheduled for January 26, 2004 at 11:00 with Hady to resolve the issue.

155. On January 23, 2004 William Pickford by fax to Tony Di Florio asserted that eight pieces of the loading dock door jambs were installed incorrectly and that Falco Steel was fabricating corrective pieces and would install them at the plaintiff’s expense. The assertion was not accepted by the plaintiff and flies in the face of the January 20, 2003 Metro Inspection Services Ltd. Metro Inspection Services Ltd. report.

156. At the January 26, 2004 meeting Sandy D Florio for the plaintiff, Paul Bishay for Discovery and Don Frigo and Lorenzo Savella for Hady agreed to get Discovery paid.

157. By invoice #2004-404, dated January 26, 2004, the plaintiff billed out $34,500.00 plus GST for the supply and installation of various extras. After deduction of 10% holdback, inclusive of GST, the amount due was $33,223.50 payable in 30 days. Neither the net amount billed, nor the holdback amount, on this billing, was paid by Hady.

158. Pursuant to the January 26, 2004 agreement Discovery agreed to instruct its lawyer to discharge its lien within 24 hours of getting paid $71,987.24, the amount claimed.

159. Mr. Bishay sent a fax to Hady referring to the January 26, 2004 agreement stating that if it is paid $66,277.80 plus GST for a total of $70,917.25 it will remove the lien. The total however was incorrect and should have been $71,987.24.

160. By cheque 210536 dated January 27, 2004 Hady paid $70,917.25 allegedly on account of invoice #203-0323 dated October 24, 2003. Mr. Bishay stated the payment was about a thousand short but as the plaintiff agreed to pay balance when it was paid Discovery agreed to discharge its lien.

161. On Wednesday January 28, 2004 the Discovery claim for lien was discharged.

162. On Thursday January 29, 2004 Mr. Pickford by Fax requested plaintiff to complete the structural bracing as altered by CCO-27 from the Owner to Hady dated January 14, 2004 or that Hady would complete the work at GTA’s expense. The plaintiff had completed its work on January 20, 2004. The plaintiff had not agreed to do the work in CCO-27 nor was a change order or change directive issued for that work. This is a good example of Hady trying to use the Change Order Procedure which had not been agreed to and then using it in a manner inconsistent with the Change Order Procedure set out in the unsigned contract between Hady and the Owner. It also underscores that throughout Mr. Pickford was not privy to any of the alleged contractual terms. Mr. Pickford admitted that in relation to CCO-27 the Change Order Procedure was not followed and there was no obligation on the plaintiff to start the work but nonetheless he had the chutzpah to send the fax.

163. Also on January 29, 2004 D&K by fax advised Mr. Pickford that they had not been paid and enclosed a copy of their invoice. Hady thus was on notice that because of its failure to pay the plaintiff not only had a lien been registered by the plaintiff’s subtrade but also that subtrades down the pyramid were not being paid.

164. On Monday February 3, 2004 the plaintiffs registered its claim for lien as Instrument Number AT401443.

165. On Wednesday February 4, 2004 Construction Review Report #12 was issued based on a review carried out on February 3, 2004. It did not disclose any outstanding deficiencies in the plaintiff’s work.

166. On Friday February 6, 2004 Sandy Di Floorio by fax confirmed the plaintiff’s position that “we cannot accept any C.O.’s which have had the prices adjusted.”

167. On Monday February 9, 2004 Hady completed the pouring of the slab for the new addition.

168. On Thursday February 12, 2004 Hady received a letter from the solicitors from Delta Joists Inc. claiming that the plaintiff owed them $30,612.70 and asked that Hady not release any more funds to the plaintiff but to direct them to Delta Joists Inc.

169. On Monday February 16, 2004 Mr. Pickford turned over the keys to the Owner for all of the buildings. Hady still had not completed all of its work including work to the structures, parking, walkway and grounds of the lands the subject of the improvement. The December 1, 2003 timetable set out April 30, 2004 as the last date for completion of all of Hady’s work. Hady as well issued its CO-2 for $321.00 to the plaintiff for a portable toilet allegedly damaged by the plaintiff.

170. On Tuesday February 17, 2004 Hady posted security in lieu of the lands and premises for the plaintiff’s claim for lien.

171. On February 20, 2004 Mr. Pickford prepared his last daily report and went on to another project with another organization.

172. The December 23, 2003 cheque for $80,572.89 dated December 23, 2003 in payment of invoice #203-0325 was admitted by Hady to not being delivered to the plaintiff until sometime in February, 2004. Hady asserts it could not have been delivered because of the Discovery claim for lien. The Discovery claim for lien was registered on January 13, 2003 whereas the cheque was dated December 23, 2003. I find that there was no impediment to Hady delivering the cheque before January 13, 2004.

173. The plaintiff after completion of its work for Hady was shut down because of financial difficulties brought on by Hady’s non-payment.

174. Work on the improvement continued by Hady with further changes by the Owner.

175. Hady delivered its statement of defence and counterclaim dated March 22, 2004. There was no claim for repayment of any monies to be paid to the Owner for delay attributable to the plaintiff.

176. On April 6, 2004 Mr. Savella wrote to the plaintiff stating that the plaintiff had missed the reinforcing at grid line F1 and G1, that the reinforcing had been re-designed and advised that the plaintiff had 72 hours to complete the work per paragraph 2 of the Hady form of contract or the work would be done at the plaintiff’s cost. The plaintiff’s work had been inspected and had not been found wanting I find there was no substance to the assertion that work had been missed by the plaintiff. Regardless, as the work had been re-designed it would amount to an extra which the plaintiff had no obligation to agree to do.

177. Hady had not completed its work for the Owner as of April 30, 2004 the last day for Hady’s work set out in the December 1, 2003 schedule.

178. On May 21, 2004 Hady issued its CO-3 directed to the plaintiff for three invoices rendered by Falco Steel to it. The change order was never accepted by the plaintiff and as such is not binding on it. No change directive was issued by Hady in respect of the amounts asserted by Hady in CO-3 demonstrating the imperfect use of the Change Order Procedure. Notwithstanding that CO-3 was not binding on the plaintiff my finding in this respect does not preclude Haty from advancing a claim for the substance of CCO-3 and proving on a balance of probabilities that the work set out therein was the responsibility of the plaintiff.

179. On May 31, 2004 Hady issued a back charge in the amount of $1,080.00 directed to the plaint for garbage removal on December 31, 2003 and January 22, 2003.

180. By the summer of 2004 there were two substantial issues outstanding between Hady and the Owner, the claim by Hady for extras related to granular fill in the amount of $261,405.00 and payment of the holdback. The first assuming the unsigned contract between Hady and the Owner governed could have been addressed by the Change Order Provisions of the contract. The second in the absence of payment by the Owner could be addressed by the issuance of a Certificate of Substantial completion. Both issues could be dealt with by direct negotiation between Hady and the Owner. If direct negotiations were entered into and if Hady wished the plaintiff to be bound thereby then the plaintiff should have been invited to participate in the negotiations and to agree with the result. The plaintiff was not invited by Hady or the Owner to the subsequent negotiations nor did the plaintiff in any way participate in the resolution of these two issues by Hady and the Owner.

181. On July 15, 2004 Hady asserts that it met with the Owner. Mr. Frigo identified a letter dated August 5, 2004 received from the Owner. Set out therein was a reference to an offer by Hady of $200,000.00 to settle the granular issue. The Owner’s response in the letter asserted losses of about $400,000.00 and appended a list of expenses. No evidence was tendered before me to in any way substantiate the enumerated losses. Hady made no attempt to prove before me the assertions allegedly made by the Owner.

182. On August 13, 2004 the Architect at Hady’s request issued the certificate of substantial performance and included was Field Review #15 by the Architect dated August 3, 2004 showing outstanding work by Hady totaling $54,472.00. The outstanding work still to be performed by Hady did not include any work relating to the plaintiff or dependant upon the plaintiff’s work. The certificate was issued 205 days after completion of the plaintiff’s work and the inference is and I find that this significant delay in substantial completion was entirely the responsibility of Hady.

183. Hady on August 16, 2004 asked the Architect to issue a change notice for granular material and fill. The Architect‘s response was to write on September 13, 2004 to the Owner stating he wanted to issue the change order but would call the Onwer to discuss it. Hady on September 21, 2004 wrote to the Architect advising that it had not received the change order.

184. Mr. Caranci testified that he was not aware of any discussions linking to the plaintiff the reduction of the payment to Hady from that sought by Hady. He was not involved in the discussion between Hady and the Owner to settle their issues.

185. On October 15, 2004 Hady again wrote to the Architect asking for the change order and stated the failure to issue was prejudicial to it.. Mr. Carancci in turn wrote to the Owner stating the holdback had not been paid and that Hady wanted a resolution of the long overdue granular issue.

186. On October 21, 2004 Hady wrote to the Owner that they were willing to meet to discuss the granular issue and the failure to pay the holdback. There was no mention of any other issues in dispute between them. On October 22, 2004 the Owner agreed to meet and on October 26, 2004 Hady responded to the Owner setting the meeting for 2:00 pm on October 27 or 28 at the Owner’s offices.

187. On October 28, 2004 Hady wrote to the Owner confirming their meeting that day and their agreement to settle the two outstanding issues by reducing the granular claim by $100,000.00 to $161,405.00 with Hady absorbing the additional fill claim of $19,337.00 and by the Owner releasing the holdback in the amount of $392,996.00. There was no mention or indication in the letter that the settlement in any way was related to the plaintiff’s work.

188. On November 11, 2004 Hady issued CO-4 directed to the plaintiff setting out an amount of $119,337.00 in Hady’s favour. The plaintiff never accepted it. No change directive was issued by Hady relating to the subject matter of CO-4. Mr. Naccarato confirmed he prepared CO-4 but could not say how the amount of $119,337.00 was arrived at. He stated that he felt the plaintiff should share responsibility but could offer no acceptable basis which would support a finding that the plaintiff had any responsibility for the $119,337.00 amount. He also tried to link the plaintiff in some way to the granular issue but the plaintiff had no involvement or connection with that issue.

189. On November 18, 2004 the Architect issued CO-37 to Hady for extras in the amount of $161,405.00 based on the October 28, 2004 Hady letter confirming the terms of the settlement and “Hady’s quote delivered November 11, 2004”. Mr. Caranci confirmed he made no independent investigation or determination of the basis of the change order and that he could not comment on it. He stated he was only involved with gravel and fill and not the alleged steel delay amount.

190. Hady’s quote consisted of a letter dated November 11, 2004 to the Architect stating that Hady and the Owner agreed to settle by valuing the cost of granular stone at $261,405.00, and the cost of removing surface fill from vacant land at $19,337.00 and reducing the total by $119,337.00 for “Deduction due to structural steel delay” leaving a net extra of $161,405.00. The result was the same as calculated in Hady’s October 28, 2003 letter to the Owner wherein there was no mention of structural steel delay. Significantly there was no evidence tendered from the Owner corroborating that this was the basis of their settlement agreement.

191. No evidence was tendered by Hady at trial to substantiate how the amount of $119,337.00 was arrived at. I find that it represented an attempt by Hady to recover monies from the plaintiff that it had given up to the owner in the settlement they reached. Similarly no evidence was adduced by Hady to substantiate its claims of $261,405.00 for granular stone and $19,337.00 for the removal of surface fill from vacant land, land which was not shown to be part of the improvement lands.

192. The plaintiff had no involvement in or knowledge of the dealings of Hady and the Owner leading to CO-37.

193. Hady failed to call any evidence in support of the $119,337.00 claim and how it was arrived at and in particular no evidence from the Owner save for Mr. Caranci who testified that he simply inserted the numbers into CO-37 and had no involvement in their determination. The inference is and I find that the owner’s testimony would not support Hady’s claim for payment of $119,337.00 as sought from the plaintiff.

What Was The Agreement Between the Plaintiff and Hady?

[59] A pivotal issue before me is what was the agreement between the plaintiff and Hady. Certainty of terms in a contract is of fundamental importance when a claim and a counterclaim is asserted based on a contract. The aim of written contracts is to let parties to predictably govern themselves by their own self-imposed rules. Courts are not in the business of filling in contracts by inventing unwritten/not agreed to obligations, implying far reaching terms[^14] or filling in voids.

[60] The plaintiff is seeking payment of monies it claims are outstanding for work it performed. Hady is asserting a set-off and a counterclaim. To determine both parties’ claims the terms of their agreement must be ascertained. As stated in so doing the court does not fill in the gaps or voids in what was agreed to by the parties.

[61] The evidentiary facts found by me underpinning the question of what was the agreement between the parties include:

1. Hady became aware of the improvement in the spring of 2003 and decided to bid on it and solicited quotes from various subcontractors.

2. The plaintiff at Hady’s request on May 23, 2003 quoted to Hady a price of $248,500.00 plus GST for the supply and erection of steel and remedial steel work to Building C and the addition to Building C based on structural steel drawings SO1 to SO8 dated April 24, 2003. The quote provided that extras would be based on $2,425.00 per ton plus erection and equipment and deletions would be based on $1,500.00 per ton. Included was the supply but not the installation of anchor bolts and leveling plates as well as the supply and installation of reinforcing material.

3. On June 30, 2003 Hady by letter of intent confirmed it intended to enter into a contract with the plaintiff for structural steel work to Building C, the addition to Building C and bracing for the north wall at Building B based on the plans prepared by McCavour and the architect and Change Notices 1 to 8 for the amount of $248,500.00 plus GST. The letter concluded by asking the plaintiff to start preparing all required shop drawings and that a contract would follow shortly.

4. On July 30, 2003 the plaintiff forwarded to Hady a copy of a contract dated July 22, 2003 which it had prepared. Set out therein was that the work was based on the McCavour structural Steel Drawings So1 to SO8 dated April 24, 2003 and Change Notices 1 to 8. The price for the work was set out as $248,500.00 plus GST. The price included the supply to the job site of anchor bolts and leveling plates and the supply and erection of: OWSJ, bridging, A/C units frames, beams, columns, vertical x-braces and perimeter angles. It also listed what was not included. It set out the price for extras as in its May 23, 2003 quote but changed the price for deletions to $1,700.00 per ton for beams and columns and $1,655.00 per ton for steel joists, angle, channel, plates and rods. It provided that “No Extras will be performed unless a signed purchase order is received by fax. Any extra charge is due 30 days and is not part of this contract.” and that “site to be clear at all times to receive steel.” Payment terms were set out as 90% as work progresses and 10% balance upon completion of steel. A schedule without a start date was provided as follows: erection drawings 2 weeks, drawing approval by Hady before we begin shop drawings, shop drawings 2 weeks, fabrication time 6 -8 weeks, erection time 2 ½ weeks and that “GTA will not be responsible for any delays. It also provided that it shall not be deemed to be a contract until all terms and conditions have been negotiated and accepted in writing by both parties. It also went on to provide that no charge backs would be allowed unless the plaintiff approved them in writing and that they were to be treated as separate from the contract. It concluded with the following term: “In the event the Subcontractor/Customer has an additional contract for our approval any reference to Payment, Clean up, Changes in work/extras, charge backs, invoicing procedures, special requirements, time is of the essence/delays, Special Conditions that conflict with the above, this Contract will Govern.”

5. Hady in turn prepared its form of contract. It bears date July 22, 2003 at the top but is dated as having been signed on August 26, 2003. Although the evidence was not precise before me as to when it was first communicated to the plaintiff what was clear is that first communication took place after July 30, 2003, that is after receipt of the plaintiff’s contract.

6. The Hady contract was one page long with an Appendix ‘A’ consisting of a drawing list. The drawings it was based on were all dated either April 23, 24, 28 or May 5, 2003.The contract price was set at $248,500.00 including provincial taxes. It provided in paragraph 1 that the plaintiff was to perform the “Work” defined as structural steel in accordance with Schedule ‘A’ as amended from time to time with the contract price to be adjusted to reflect any increase or decrease in cost to the plaintiff as a result of changes and any dispute shall be determined by owner’s architect or engineer whose decision shall be binding with no appeal. In paragraph 2 time was deemed to be of the essence and if any other party was delayed Hady could give the plaintiff three days notice to expedite the work failing which Hady could cancel and terminate the contract, pay the plaintiff the value of the work provided to termination and either re-let the remaining work or complete it and then only be bound to pay the plaintiff the difference between the Contract Price and the cost incurred and if it exceeded the Contract Price the plaintiff would be liable to pay the excess. Again any dispute was to be resolved as aforesaid. Paragraph 3 had the plaintiff bound in respect of its work by the terms of Hady’s contract with the owner. Paragraph 4 dealt with waste materials and the procedure for dealing with it and the terms by which the plaintiff could become liable for the cost of clean-up. Paragraph 5 provided that no extra was chargeable without a change order signed by Hady. Paragraph 6 provided for payment within 30 days of the later of the 29^th day of the month in which the work was completed or the date of the plaintiff’s invoice. It provided for the holdback to be paid within 45 days after completion of the work and no outstanding liens by the plaintiff or its sub-contractors as well as other terms in that respect. Paragraph 7 provided for a one year guarantee of the work. Paragraph 8 was a liability clause. Paragraph 9 was a warranty that the plaintiff had all necessary permits and licenses to do the work. Paragraph 10 was the normal successor clause provision.

7. Notwithstanding the date set out as the date of execution the contract was sent back and forth between the parties. Changes were made to paragraphs 1, 2, 6 and paragraphs 3A, 4A and 5A were added and revised. Appendix “A” was amended as well. The evidence was unclear as to exactly when the exchanges took place save as noted.

8. An issue arose on August 6, 2003 concerning work which the plaintiff asserted was not contemplated by the contract which was under negotiation by the parties. Meanwhile work commenced. On October 2, 2003 by fax Frank Di Florio stated that Mr. Savella had agreed to the additional work, that is an extra to the contract under negotiation and required a purchase order before the work commenced. He went on to state that “We have not yet received a signed confirmed contract for the above job. The contract documents were dropped off at your office early part last week for your review, can you please look into this matter please.”

9. Although remedial steel work in Building C had been ongoing for some time steel erection commenced in the new addition on October 10, 2003.

10. On October 14, 2003 Mr. Frigo sent back the Hady contract documents with further changes further changes, the dropping of paragraph 4A and a change to paragraph 6.

11. On October 16, 2003 Frank Di Florio in a fax to Mr. Savella stated “If you require cross bracing we have priced please send purchase order.” His position was that the Change Order regime imported by paragraph 3 of the Hady contract was inapplicable and that the plaintiff required a purchase order for the extra work.

12. Thereafter the Hady contract was returned by the plaintiff with more changes which were not agreed to by Hady and Hady never signed back the contract again,

[62] Based on my findings of fact, I find that the parties did not agree to the plaintiff’s form of written contract dated July 22, 2003 nor did they agree to Hady’s form of written contract also bearing date July 22, 2003. After delivery of the plaintiff’s contract Hady sent out its form of contract. This was followed by a back and forth exchange of the Hady July 22, 2003 written contract with each party making changes to it. Each party would receive the contract as signed by the other with changes initialed and then in turn make further changes and initial them. In the final result when the contract came back to Hady it refused to initial the last set of changes made by the plaintiff such that there was no accepted agreed to written contract between them.

[63] Once an offeree rejects a term of a written offer or adds a term to a written offer which rejection or addition is not accepted by the opposite party there is no bargain and therefore no contract. There must be agreement by both parties on all terms of the written contract. One party cannot cherry pick the terms it likes and impose them on the other party. Here the parties, notwithstanding their intention to contract could not agree on what constituted the written contract. Further, the subsequent conduct of each of the parties was inconsistent with terms set out in both of the two written contracts which they had proposed. Hady in its written submissions agreed that no written contract was agreed to stating “It is, therefore, clear that the parties were not ad idem on all of the terms of the written and signed Agreement.”

[64] The parties nonetheless proceeded with the work as quoted by the plaintiff notwithstanding that a written agreement was never reached. By their conduct and as admitted they were in agreement as to three terms governing the work. No issue was taken by Hady that the plaintiff’s work constituted that originally quoted as well as work in Building B. This is corroborated as Hady treated the plaintiff’s claim for extras initially identified in Frank Di Florio’s fax of August 6, 2003 as an extra. Similarly as to price both parties accepted $248,500.00 as the price for the plaintiff’s work as quoted including Building B work. Lastly Hady agreed that the polaintiff’s invoices were payable within 30 days.

[65] I find that by their conduct as set out in my findings the parties were in agreement as to the following:

1. There was agreement as to what constituted the plaintiff’s work exclusive of extras, that is the structural steel work and remedial steel work in relation to building C and the addition to it as well as bracing for the north wall at Building B all as set out in the McCavour structural steel plans SO1 to SO8 bearing dates April 23, 24, 28 or May 5, 2003 and Change Notices 1 to 8;

2. There also was agreement as to the price to be charged for this work, $248,500.00 plus GST; and

3. There also was agreement that the plaintiff’s invoices were payable within 30 days.

[66] Highlights of the evidence before me relating to payment terms is as follows:

1. In the plaintiff’s contract payment terms as to the supply under the proposed contract were set out as follows: “Terms and delivery: 90% as work progresses balance of 10% 30 days upon completion of steel.”

2. In Hady’s proposed contract: “Payment for work completed shall be made within 30 days from the later of the 29^th day of the month in which the work was completed and an invoice was submitted in duplicate to the Contractor, or if an invoice is not submitted by the 29^th day of the month in which the work was completed, 30 days after submission of an invoice in duplicate to the contractor.” Coupled thereto was the provision that no payment was to exceed 90% of the portion of the work completed and that the balance shall be paid forty-five days after the later of (i) completion of the work with no liens, (ii) acceptance of work by Contractor, owner, owner’s architect and engineer and inspectors (iii) delivery of “as built” drawings and other material, a final completion certificate signed by the project superintendent, customary statutory declaration, certificate of guarantee and certificate of clearance from the Worker’s Compensation Board.

3. Plaintiff’s invoice 2003-0317 dated August 25, 2003 Draw No. 1 for drawings and anchor bolts in the amount of $14,637.60 after deduction of 10% holdback marked “NET 30 “ and “DUE SEPT 25/03”.

4. Plaintiff’s invoice 2003-0318 dated August 25, 2003 for the supply and installation of temporary cable bracing an extra to the agreed to work in the amount of $8,517.20 with no deduction for holdback in the amount of $8,517.20 marked “DUE UPON RECEIPT”.

5. Mr. Savella agreed that the plaintiff’s invoices for its draws were agreed to be paid within 30 days. Such payment did not take place putting Hady in breach of this agreed to term.

6. Plaintiff’s invoice 2003-0320 dated September 25, 2003 for reinforcing, erection a/c units and repair work to existing joists in the amount of $46,450.31 after deduction of 10% holdback marked “NET 30” and “DUE OCT 24/03”.

7. Cheque No. 209603 dated October 16, 2003 issued by Hady in the amount of $23,154.80 of which $14,637.60 was payment for invoice 2003-0317 and $8,517.20 payment for invoice 2003-0318. Payment was not made in accord with the payment terms set out in the invoices.

8. Cheque No. 209660 dated October 24, 2003 issued by Hady in the amount of $46,450.31 payment for invoice 2003-0320. It was paid by Hady within the payment terms set out in the invoice.

9. Plaintiff’s invoice 2003-0323 dated October 24, 2003 for supply of steel for the new addition in the amount of $147,231.63 after deduction of 10% holdback marked “NET 30”. This invoice was not paid by Hady.

10. On November 3, 2003 Tony Di Florio hand delivered a letter expressing concerns over Hady’s failure to pay outstanding invoices stating, “I do have concerns regarding our cheque. Frank has been to your offices 3 times now as this payment was due by the end of October . . . Kindly call me today to confirm what time to pick up cheque.”

11. Plaintiff’s invoice 2003-0325 dated November 24, 2003 for the supply of steel less 10% holdback $34,927.96 and for extras less 10% holdback $40,373.81 in the total amount of $80,572.89 including taxes marked “NET 30”.

12. Cheque No. 210245 dated December 23, 2004 issued by Hady in the amount of $80,572.89 payment for invoice 2003-0325 but was not delivered to the plaintiff until February, 2004.

[67] The plaintiff, save for the invoice number 2003-0318 dated August 25, 2003 for the supply and installation of temporary cable bracing, worked on the basis that it was to be paid within 30 days after an invoice was delivered for work done. Hady agreed that was the agreement. Hady on receipt of each invoice was fully aware that was the condition upon which the plaintiff was performing its work as each such invoice contained the term “NET 30”. Hady also was aware of the plaintiff’s position that it would stop working if not paid as requested. Other than a short delay in the work the plaintiff never carried through with this threat

[68] For the aforesaid reasons I find that the parties reached an agreement concerning payment terms for the plaintiff’s work exclusive of extras, namely invoices were to be paid within 30 days of receipt. Hady notwithstanding its agreement did not make payments as agreed to and did so knowing that if a payment was not made within 30 days the plaintiff might not be able to pay its trades with the potential result that the claims for lien would be registered.[^15].

[69] There was no firm start or completion date or length of time agreed to for the completion of the plaintiff’s work.

Change Order Procedure

[70] Hady during the course of the plaintiff’s work when it suited its purpose purported to rely upon provisions of its unsigned contract with the owner relating to how changes in the work were to be addressed that is by the Change Order Procedure set out in the unsigned contract between Hady and the Owner.

[71] For the Change Order Procedure to be binding between the plaintiff and Hady it must have been agreed to by both parties. The only provision which could have given rise to agreement on the application of the Change Order Procedure was paragraph 3 of Hady’s form of contract. Paragraph 3 purports to import the terms and conditions agreed to by Hady and the Owner in their unsigned contract. As the Hady form of contract was never agreed to by the Hady and the plaintiff it follows that the Change Order Procedure set out in the unsigned contract between Hady and the Owner was never made binding between them nor was it ever agreed to be binding between them. Throughout the plaintiff made it clear it would only deal with changes, that is extras, by purchase order and not by the Change Order Procedure.

[72] The unsigned contract between Hady and the Owner was in CCDC-2, 1994 format. Part 6 governed changes in the work using a “Change Order Procedure” which provided that no work was to be performed without a change order or a change directive both defined terms in the contract. Each contemplated in the usual case a change both in price and in contract time, that is, the time provided for in the unsigned contract for Hady to perform its work. A change order was processed by a procedure using a contemplated change notice to arrive at an amount for the adjustment of the contract price and contract time, if any. If both parties agreed to the adjustment then it was memorialized in a change order signed by both and the work could proceed and be billed as part of the progress payment invoicing. If there was no agreement then there was no change order and the owner if it still wished the contemplated change would have to resort to a change directive.

[73] If the Owner required the work to be performed and no agreement was reached then the Oner could issue a change directive. Upon receipt of the change directive the work was to be effected promptly and the price was to be determined by the contractor submitting its costs and receiving an allowance for overhead and profit. If there was no agreement, changes in contract price and contract time as a consequence of a change directive were to be determined by the consultant.

[74] During the duration of the work carried out by the plaintiff and thereafter Hady continually resorted to contemplated change notices and change orders. No change order was ever agreed to by both the plaintiff and Hady as contemplated by Part 6 of the unsigned contract between Hady and the Owner[^16]. Hady’s resort to the Change Order Procedure was imperfect and amounted to cherry picking and relying on the Procedure when it suited its objectives. For example it wanted changes in the plaintiff’s work to be performed immediately notwithstanding a change order was not agreed to and notwithstanding that its witnesses agreed there was no requirement or obligation under the Change Order Procedure to perform any changes until the change order was in place, that is agreed to by both parties.

[75] Hady did so knowing there was no written contract between it and the plaintiff importing and making the Change Order Procedure applicable to the plaintiff’s work. Mr. Frigo who knew there was no contract made no effort to stop either Mr. Savella or Mr. Pickford from utilizing the Change Order Procedure to deal with extras with the plaintiff which Hady wished the plaintiff to perform whether identified by the plaintiff or requested by Hady. Hady’s resort to this procedure was made in the face of its knowledge that Hady and the plaintiff never agreed to the Change Order Procedure as provided for in the unsigned contract between Hady and the Owner.

[76] A good illustration of Hady’s cherry picking when it resorted to the Change Order Procedure is the first extra sought by Hady for cable bracing in Building C. On or about August 6, 2003 verbal requests were made for the extra work to the plaintiff. Mr. Savella at the plaintiff’s request verbally confirmed it was an extra. On August 14, 2003 the plaintiff quoted the work. The quote was verbally accepted. The work was performed on or about August 20, 2003 and billed out by the plaintiff to Hady without reference to the plaintiff’s main work on August 25, 2003 payable on receipt. After the fact on August 28, 2003 Hady prepared a change order which was never signed by the plaintiff. Hady did not make payment until late October by a cheque dated October 16, 2003 without deduction of any holdback. Mr. Pickford had the chutzpah, knowing there was no change order in place and knowing that no change directive had been issued, to opine that as a consequence of the plaintiff not doing the work when verbally requested but rather some 14 days later and after the terms had been agreed to that the plaintiff was responsible for delaying the project, a completely untenable conclusion.

[77] I find that the Change Order Procedure set out in the unsigned contract between Hady and the owner was never agreed to by the plaintiff and Hady. I further find that the procedure was used selectively by Hady to delay payment to Hady for extra work knowing that there would be a downstream effect on the plaintiff’s subcontractors, that is that the plaintiff would have difficulty paying them.[^17]

Plaintiff’s Claim

[78] In the statement of claim the plaintiff increased the amount claimed by it from $135,894.00, the amount claimed in the claim for lien, to $164,686.46[^18] based on an accounting of each draw, holdback, extras and credit for payments received. The statement of account had a mathematical error in respect of Draw #4 which consisted of $75,301.77 plus GST of $5,271.12. The total of the two amounts on the statement was $85,572.89, whereas the two amounts only total $80,572.89. At the opening of trial for that reason the plaintiff reduced its monetary claim to $159,686.46 reflected in the amendment to the statement of claim granted at the opening of trial. The claim encompassed both the agreed to plaintiff’s work and extras to the agreed to work.

[79] The difference between the $159,686.46 claimed in the statement of claim and the amount claimed in the claim for lien is $23,792.46. This latter amount can only be recovered by way of a money judgment and cannot, if proven, amount to a charge on the monies paid into court. The sum of $135,894.00 plus costs is the maximum amount recoverable by way of the claim for lien against the monies paid into court in lieu of the lands and premises.

[80] The plaintiff’s claim is based on series of invoices for its work and extras plus holdback less the payments received from Hady as set out in the following chart:

DATE	PARTICULARS	DEBIT[^19]	CREDIT[^20]	BALANCE[^21]
8/25/03	Invoice #2003-0317 dated August 25, 2003 (issued for a second time as invoice1982 on October 27,2003) Draw #1 relating to drawings and anchor bolts in the amount of $16, 264.00 less holdback of $1,626.40.	14,637.60		14,637.60
8/25/03	Invoice #2003-0318 dated August 25, 2003 (issued for a second time as invoice #1981 on October 27, 2003) Supply and install cable bracing extra to the contract. Hady did not deduct holdback.	8,517.20		23,154.80
9/25/03	Invoice #2003-0320 dated September 25, 2003 (issued for a second time as invoice #2031 on November 5, 2003) Draw #2 relating to the supply and installation of steel reinforcing Building C less holdback of $5,161.14	46,450.31		69,605.11
10/24/03	Invoice #2003-0323 dated October 24, 2003 Draw #3 relating to supply and erection of steel less holdback of $16,359.07	147,231.63[^22]		216,836.74
10/27/03	Hady’s cheque for $23,154.80 dated October 16, 2003 for payment of invoices #2003-037 and #2003-0318 received October 27, 2003 deposited on November 8, 2003		23,154.80	193,681.94
11/05/03	Hady’s cheque for $46,450.31 dated October 24, 2003 for payment of invoice #2003-0320 received on November 5, 2003 and was deposited on November 7, 2003		46,450.31	147,231.63
11/24/03	Invoice #2003-0325 dated November 24, 2003 (issued for a second time as invoice #325 on a date in February, 2004) Draw #4 for the supply of steel for the new addition in the amount of $34,927.96[^23] and for extras totaling $40,373.81[^24] less holdback of $8,952.54	80,572.89		227,804.52
01/16/04	Invoice #2004-403 dated January 16, 2004 Draw #5 1981 for extras to the contract less holdback of $1,435.79	12,922.12		240,726.64
01/26/04	Invoice #2004-404 dated January 26, 2004 for extras in the amount of $34,500.00[^25] less holdback of $3,450.00[^26]	33,223.50		273,950.14
01/27/04	Hady’s cheque for $70,917.25 made payable to Glaholt LLP dated January 27, 2004 was deposited on January 28, 2004 on account of the Discovery claim for lien.		70,917.25	203,032.89
February 2004[^27]	Hady’s certified cheque for $80,572.89 dated December 23, 2003 for payment of invoice #2003-0325		80,572.89	122,460.00
03/05/04	Holdback due 45 days after the date of last work, January 20, 2004. Holdback comprised of: Draw #1 - $1,626.40, Draw #2 - $5,161.14, Draw #3 - $16,359.07, Draw #4 - $8,952.54, Draw #5 - $1,435.79 and January 26, 2004 invoice - $3,691.50.	37,226.44		159,686.44

[81] The plaintiff’s last work took place on January 20, 2004. With holdback the plaintiff claims the amount outstanding for both the agreed upon work and for extras as set out in the chart above is $159,686.44. Hady takes no issue with the amount claimed for the plaintiff’s agreed upon work exclusive of extras but challenges the amounts billed for extras except for the claim for extras set out in invoice #2003-0318. Hady’s position as well is that it is entitled to deduct from any amount found payable to the defendant its claims by way of set off and by way of its counterclaim including a claim for deficient work. On that basis I find that the plaintiff is entitled to the amount claimed for the agreed upon work at the agreed upon price and for the extra set out in invoice #2003-0318 subject to Hady’s claim for set off and by way of counterclaim.

[82] As to extras the initial burden of proof is on the plaintiff to establish its claim for extras on the basis of proof on a balance of probabilities. The plaintiff must establish that the extras were extras, that the extras were requested, that the extras were supplied, that there was an agreement as to the price of the extras or in the alternative that the amount claimed is payable on a quantum meruit basis. The plaintiff in its statement of claim advanced its claim first on the basis of an agreement and in the alternative on the basis of quantum meruit.

[83] Hady takes the position that the value of extras are those determined by the Owner’s consultant pursuant to the Change Order Procedure or in the alternative that the Owner’s consultant’s determination amounts to the quantum meruit amount payable for the extras. I have found that the Change Order Procedure was not agreed to which finding negatesthis position asserted by Hady. At best any valuation of extras by the consultants if properly tendered would only serve as evidence to be considered when determining a claim for extras based on quantum meruit.

[84] As (1) Hady was on notice of the plaintiff’s rates for changes from the time of its original quotation, (2) Hady knew there was never an agreement in place to have extras determined by the Change Order Procedure in its agreement with the Owner, (2) Hady requested extras, (3) Hady insisted that the extra work be done before agreement on the value of the extra after the plaintiff had quoted, I find that Hady agreed to the supply of extras on the basis of the quoted price and that Hady is bound to such agreement. In such circumstances as Hady by its actions agreed to have the extra work done and insisted on it being done by its actions it agreed to the work being done on the basis of the plaintiff’s quoted price for the extra. At no time did it take the position that the rates quoted by the plaintiff were not the fair market value for the services in issue rather throughout with the one exception in respect of cable bracing after having the work done on the quoted basis it attempted to hide behind the Change Order Procedure to avoid paying for the extras or to achieve payment on a price less than was quoted.

[85] In respect of cable bracing it requested the work, insisted that it be done even before a quote was received, received the quote, agreed to the work proceeding, was billed for the work and then purported to use the Change Order Procedure by issuing a change order in the amount billed. The change order was never signed by the plaintiff as required but nonetheless was paid by Hady who thus disregarded the Change Order Procedure. In respect of subsequent extras Hady instructed the plaintiff to do the work after the plaintiff had quoted but then hid behind the Change Order Procedure until the plaintiff’s work was substantially complete.

[86] For the aforesaid reasons I find that Hady agreed to the supply extras at the price quoted by the plaintiff where Hady requested the work, received a quote from the plaintiff and insisted that the work be done.

[87] The first billed for claim for extras after that relating to cable bracing is set out in Invoice #2003-0325 dated November 24, 2003 comprising Draw #4 for extras 1 to 3 in the amount of $44,859.79[^28]. The claim for extras was not disputed and on December 23, 2003 Hady’s certified cheque was issued and subsequently paid to the plaintiff without taking any issue with the extras set out therein. I note that the plaintiff’s prior invoice #2003-0323 dated October 24, 2003 for Draw #3 in the amount of $147,231.63 was not paid by Hady.

[88] The claim for extra 1 was first raised by Frank Di Florio in his fax dated August 6, 2003 when new drawings were received and it was discovered that additions were added not reflected in the drawings upon which the plaintiff’s quote was based. On September 9, 2003 he again raised the issue. In the October 20,2003 by letter with an attached breakout the portion of extra 1 totaling $37,874.75 relating to Sheets #1 to #5 was sent to Hady, McCavour and the Architect together with the statement that they were instructed to proceed with the work by Mr. Savella. This statement was not disputed before me. On December 22, 2003 the plaintiff sent a further break out of the basis for extra 1 with revised figures. There was no real response from Hady until January 12, 2004. Hady also did not factor in the items as accepted as it did by change orders for the items it was seeking to recover from the plaintiff by way of set off and counterclaim. In the response Hady stated that it’s valuation was based on a review with the architect and structural engineer. Mr. Caraci could not given any positive answer to the numbers set out therein. Other than the bald assertion no evidence was led to demonstrate that the consultant’s actually conducted the review and as to how they arrived at the valuation ascribed to them. The following chart sets out the price initially tendered for sheets #1 to #5 by the plaintiff, the price on its resubmission and Hady’s valuation of January 12, 2004.

Plaintiff’s Item	Total Price[^29]	December 22, 2003, Price Resubmission[^30]	Hady Item	Hady’s Valuation Price January 12, 2004[^31]
Sheet #1	5,325.05	4,980.05	CCO #3	2938.41
Sheet # 2	6,358.19	5,622.08	CCO #27	Not accepted
Sheet # 3	$8,486.13	3,960.95	CCO #3	Accepted[^32]
Sheet # 4	$8,852.71	9,674.20	CCO #16	4,770.84
Sheet # 5	$8,852.71	9,674.20	CCO #16	4,769.99
Totals	$37,874.79	$33,911.48		$12,479.24

[89] There was no evidence tendered from a neutral party as to what was the value of these extras in the open marketplace. As stated on December 22, 2003 notwithstanding these extras had been billed out on November 24, 2003 at the initially quoted prices the plaintiff submitted new prices lowering the amount charged on three items and increasing the amount on two. The plaintiff had an obligation to be accurate in its billing and pricing. Each time the pricing by the plaintiff was precise and no evidence was tendered by the plaintiff to indicate why the discrepancy. In these circumstances on the evidence before me I find both on the basis of Hady’s agreement and on the basis of quantum meruit that the value of the work represented by sheets #1 to #5 comprising extra 1 to be $4,980.05, $5,622.08, $3,960.95, $8,852.71 and $8,852.71 respectively, totaling $32,268.50[^33] payable by Hady.

[90] Extra 2 in Invoice #2003-0325 dated November 24, 2003 comprised the installation of cross bracing in Building B. This work arose from Site Instruction 1 dated September 15, 2003 and CCO-8 of even date. The work was requested by Hady and performed. It was originally priced at $6,944.26 plus GST. It was invoiced at $4,300.00. Based on the evidence before me I find that both on the basis of Hady’s agreement and on the basis of quantum meruit the value of extra 2 to be $4,300.00[^34] payable by Hady.

[91] Extra 3 in Invoice #2003-0325 dated November 24, 2003 comprised reinforcing three extra joists in Building C. The work is identified as set out in sketches SK36 and SK37 which are McCavour’s drawings. The work was required by Hady and performed. No evidence was adduced to the contrary. Based on the evidence before me I both on the basis of Hady’s agreement and on the basis of quantum meruit the value of extra 3 to be $2,685.00[^35] payable by Hady.

[92] Invoice #2004-403 dated January 16, 2004 in its entirety is a claim for extras totaling $13,418.61[^36] referencing a series of change orders and sketches as well as a description of 2 separate items of work. Both Frank Di Florio and Tony Di Florio in examination in chief and in cross examination could not provide any evidence in support of the claim based on this invoice and in particular what the extras were that this invoice related to. They indicated that Sandy Di Florio knew the answers however Sandy Di Florio, as noted, was not called as a witness. I find that the plaintiff has failed in its burden of proof to prove this claim for extras.

[93] The last claim for extras is invoice 2004-404 dated January 26, 2004 in the amount of $34,500.00[^37] referencing an attached breakdown of what is claimed. Only the first page of the breakdown was tendered into evidence before me setting out 13 items as follows;

1. Claim for straightening bent anchor bolts. Mr. McCavour testified that this often happened on an improvement such as this and it was normal for the structural steel sub-contractor to do the correction work on the basis that it was an extra to the contract. Extra charge for labour.

2. Claim for extra cost incurred for scissor lift and crane when the scissor lift was stuck on site in mud on October 17, 2003 because the site had not been suitably prepared to accommodate the equipment needed for steel erection. Hady subsequently brought in and graveled the interior of the new addition. The existence of mud was corroborated by the photographic evidence and the testimony of Mr. Bishay.

3. Claim for having to move steel around by crane to accommodate the laying of gravel down in the new addition. Extra charge for crane and labour.

4. On October 17, 2003 work was stopped by Mr. Pickford for 1 1/2 hours to check the steel erectors and welders for fall arrest training, scissor lift training and safe rigging and hoisting proof of training. Of the seven workers checked only two had fall arrest training. Mr. Pickford as site superintendent had an obligation to check for this information as Hady would be liable to the Ministry of Labour in the event a site inspection was carried out and the workers found wanting. The issue arises as the plaintiff was charged by its sub-contractor for the time taken to do the checking and it’s the plaintiff’s position such information should have been asked for in advance. Work had already been on going on the site without the information being sought. Hady did not in advance ask that the steel workers produce their certificates. The charge was for 1 ½ hours crane and labour time for seven workers.

5. The plaintiff’s forces arrived to do the front entrance installation. On one occasion other trades were working so there was no access to the front entrance. On a subsequent occasion the site had not been prepared for them as the roofing and roof deck had not been stripped to allow the erection to take place. Extra charge of six hours crane time and labour charge for five men for six hours.

6. Claim for painting the existing joists on the instructions of Mr. Pickford. Claim for paint, labour and scissor lift. The painting was a requirement of the specifications for the steel. McCavour inspection disclosed that through the erection process paint was lost[^38] and the repainting was necessary.

7. Mr. Pickford requested that the plaintiff weld a door and repair existing cross bracing. The plaintiff did the requested work.

8. Plaintiff was asked to relocate a new roof unit at Grid Area B15 to Grid Area B14 and to add horizontal cross bracingto roof between Grid lines 14-15 at Grid lines A-G. This work was not in the agreed to plaintiff’s original work.

9. Field weld anchor bolts per January 7, 2004 report for column A39 which were installed improperly by Hady. Charge for two men and equipment for two hours.

10. Repair to anchor bolt threads in cfor column A3-7 pursuant to January 7, 2004 report.

11. Slotting base plates for three columns because anchor bolts installed incorrectly by Hady. Again Mr. McCavour said this type of error was not uncommon and could be addressed by slotting the base plates but that the work would be an extra.

12. A footing was not installed correctly and Mr. Pickford agreed to payment of four hours of crane time to rectify the problem.

13. This related on its face to the new entrance. Tony Di florio in chief could give no evidence in support of this claim and the plaintiff tendered no other direct evidence relating to it.

[94] In relation to item 13 the plaintiff has failed to meet its burden of proof. Other than indicating the men, equipment and time involved the plaintiff provided no further information before me directly in support of the 12 remaining items save for the evidence of Mr. Bishay and the charge back invoices from Discovery to the plaintiff for a number of items listed above. Applying the Discovery charge back costs, an hourly rate of $65.00 for labour, $275 per hour for crane and 10 per cent for profit and overhead[^39] I find that the quantum meruit value of the extras supplied in items 1 to 12 in invoice 2004-404 to be $13,050.00 payable by Hady.[^40]

Summary of Plaintiff’s Claims

[95] In summary I find that the plaintiff has met its burden of proof and proved entitlement to the amounts found as set out above together with GST payable by Hady for the plaintiff’s work and for extras less the payments made by Hady subject to Hady’s claim for set-off and counterclaim including the claim for deficient work.

Counterclaim and Set Off

[96] Hady has pleaded both a claim for set-off and a counterclaim in the amount of $150,000.00. In its written submissions Hady submits that any amount of the set-off which exceeds the amount owing to the plaintiff represents Hady’s damages in its counterclaim.

[97] Hady advances by way of set off and counterclaim the following claims totaling $223,565.15:

1. Damage to a rental portable toilet in the amount of $321.00;

2. Payments to Falco Steel Fabricators of $6,184.97 allegedly to correct deficiencies.

3. The claim of OC based on its December 1, 2003 letter providing a price of $38,000 plus GST (total $40,660.00) for scaffolding, tarping and fuel for hoarding and heating for winter considerations for both buildings.

4. For Hady’s direct costs for a 66 day calendar day delay from December 12, 2003 to February 16, 2004 composed of: portable toilet rental $447.26, site trailer rental $1,201.75, project manager $10,757.56, project superintendent $11,112.16, general labour $33,543.45 totaling $56,741.18.

5. The sum of $119,337.00 paid to the owners because of delay based on the amendment to Hady’s statement of defence and counterclaim by the addition of paragraph 16(g).s.

[98] Hady purported to advance its claims by way of change orders to the original contract value. These change orders of themselves have no effect as there was no agreement to the Change Order Process by the parties. Even if the Change Order Process had been agreed to the claims could not have been advanced by way of a change order as under the Process for a change order to be effective the change order has to be accepted by the plaintiff and they were not. In the result each claim has to be dealt with on its own merits.

[99] Hady’s claim in respect of the first item is for damages to a rental toilet, in respect of the second item for the cost of rectification of alleged deficiencies in the plaintiff’s work and the final three claims are based on delay allegedly attributable to the plaintiff.

Damage To Rental Toilet

[100] This claim was advanced by a back charge to the plaintiff by Hady dated February 16, 2004. The testimony in support of this claim was that of Mr. Savella. Not only was Mr. Savella led through his testimony on this back charge but he had no direct knowledge of the circumstances surrounding the back charge. Mr. Pickford’s evidence also was of no assistance in meeting the plaintiff’s burden of proof to demonstrate that the plaintiff was the author of or responsible for the damage to the rental toilet. I find that Hady has failed to meet its evidentiary burden on a balance of probabilities to prove this claim.

Payments to Falco Steel

[101] Hady claims $6,184.97 for payments to Falco Steel allegedly to correct deficiencies. Only two invoices were put in evidence before me from Falco Steel. The first is Invoice # 04-29 dated February 17, 2004 in the amount of $1,722.18 for the extension of 4 overhead door frames and the second Invoice #04-30 also dated February 17, 2004 in the amount of $3,466.73 for doing the work set out in CCO #27. Hady submits that a further invoice was submitted for $1,320.86 but was not introduced into evidence before me.

[102] In respect of the claim of $1,320.86 other than Change Order #3 dated May 21, 2004 created by Hady there was no evidence tendered to prove on a balance of probabilities that the work was done, that the work was the responsibility of the plaintiff and that the plaintiff’s alleged underlying work was effected by it in a deficient manner. Change Order #3 was put to Mr. Frigo, Mr. Savella and Mr. Caranci none of whom had any personal knowledge of its subject matter. Change Order #3 was never accepted by the plaintiff. If the Hady form of contract had been binding Hady, once the plaintiff did not accept change order #3 would have had to issue a change directive to pursue the claim against the plaintiff and it did not. For the aforesaid reasons I find that Hady has failed in its burden of proof on a balance of possibilities to prove this claim.

[103] Falco Invoice #04-30 relates to the Owner’s CCO #27. CCO#27 dated January 14, 2003 which deals with new bracing due to existing site conditions. It required the deletion of existing work and the addition of new work. It was not work contemplated under the plaintiff’s agreed to work but was a change to it after the work to be deleted had been executed and the addition of new work. Hady’s witnesses agreed that there was no requirement to do the work in a CCO under the Change Order Procedure until a change order was agreed to. Here the Change Order Procedure was not agreed to and even if it applied there was no agreed to change order. If the Change Order Procedure had been applicable in order for Hady to have the plaintiff do the work Hady would have had to issue a change directive to the plaintiff to do the work and it did not. In short this amounted to new work which the plaintiff had no obligation to perform. For the aforesaid reasons I find that Hady has failed to prove on a balance of probabilities that the plaintiff was required to do the work set out in CCO #27 and Hady’s claim in this respect fails as well.

[104] Falco Invoice # 04-29 dated February 17, 2004 in the amount of $1,722.18 related to the extension of four overhead door frames part of the plaintiff’s work. On January 23, 2004 Mr. Pickford by fax advised Tony Di Florio of the alleged deficiency relating to the loading dock door jambs and that Falco was fabricating and installing the corrective pieces at the plaintiff’s expense. In his viva voce testimony Mr. Pickford stated that the plaintiff refused to do the correction and as a consequence Falco was called to do the work. However the description of the alleged deficiency as described in the January 23, 2004 fax and the invoice do not correspond. The invoice describes the work as “to extend 4 overhead door frames” and not to correct the installation of 8 pieces. The Daily Reports indicate that the last work done by the plaintiff on the door jambs was on December 31, 2003. Construction Review Report #11 dated January 7, 2004 based on a January 6, 2004 inspection by McCavour indicates that an inspection of the O/H doorjambs was carried out but no deficiencies were noted. Taking into account all the evidence before me I find that Hady has failed to prove this deficiency on a balance of probabilities.

Delay

[105] In dealing with the question of whether the plaintiff is responsible for delay as Hady asserts, in the absence of an agreement addressing start date, completion date, length of time that the plaintiff’s work was to take and delay, I have been put by the parties in the position of addressing delay on the basis of an implied term that a contractor’s work is to be completed within a reasonable time. The courts have implied this type of term in similar circumstances based on the particular facts adduced in each case. What is a reasonable time is a question of fact.[^41]

[106] In coming to my determination on the issue of delay in addition to considering all of the evidence and all of my findings set out above I find that the following findings of fact are of particular import and application:

1. The parties never agreed upon a start date, completion date, how long the work would take and how to address delay. Also, there was no agreement between the parties for a fixed timetable for the plaintiff’s work.

2. The July 9, 2003 Hady timetable was unilaterally established by Hady without the agreement of the plaintiff. Hady changed the timetable as circumstances changed but never produced any changed timetables at trial save for that of December 1, 2003.

3. There were timing errors in the timetable from the start. It provided for the installation of foundations to take place from September until November 17, 2003, an obvious error. It also provided for the structural steel erection in the new addition to start on September 22 and to be completed on October 9, 2003. It also provided that stone for the slab in the new addition was to start on September 23 to be completed on September 29, 2003. Spreading of stone would adversely interfere with steel erection and could not take place at the same time.

4. The July 9, 2003 Hady timetable became a fiction in mid-August, 2003.

5. The first delays occurred as a consequence of the demolition of portions of Building C. Until demolition was complete and all the existing steel work was completely uncovered and inspected the full extent of the steel remediation work to Building C did not become known. For example at least one existing column was discovered to be twisted but McCavour decided that it did not have to be corrected because it had been in place in that state for a great number of years without any consequence. Two buried fuel oil storage tanks were discovered and had to be dealt with on an environmental basis. As the demolition took place and as the remediation was effected additions and changes were required to the remediation work originally set out in the drawings which the plaintiff quoted on as well as to remediation work already carried out by the plaiuntiff.

6. Commencing August 18, 2003 the Owner had a representative on site for most of the time until February 20, 2004, the last day for which daily reports were produced in evidence before me. As such the Owner was aware at all times of the progress of the improvement.

7. Once demolition started it was determined that cable bracing was needed to hold the structure together before remediation could start and pending completion of the remediation work. Cable bracing comprised the first extra to the plaintiff’s work requested by Hady.

8. On August 25, 2003 the plaintiff delivered steel; for the remediation work to Building C and work started on September 2, 2003 as contemplated by the July 9, 2003 Hady Schedule.

9. Subsequently there were numerous changes to the steel remediation work in Building C over and above those or in lieu of those set out in the drawings forming the basis of the plaintiff’s work which needed to be addressed. Each change whether because of resort to newer drawings or changes generated by the state of the site or requirements of the improvement in turn gave rise to delays and claims for extras all prolonging the steel remediation work to Building C. The Hady July 9, 2003 timetable provided for the remediation work to Building C to be done from September 2 to 22, 2003. The allocation of time was made before demolition took place when the extent of the necessary remediation became known and without any consideration of the numerous changes. The allocation of time was completely unrealistic. Mr. Pearson admitted there were numerous dimensional changes the responsibility of Hady which he was unable to track but which he admitted could have caused delay.

10. In order for the steel erection to commence for the new addition it was Hady’s responsibility to in advance install the foundations, piers, storm drains, backfill, final fill, stone for the slab and leveling plates and anchor bolts. Hady had to ensure that the interior of the new addition was level and accessible to accommodate the structural steel as delivered and the use of the scissor lift and the crane used in erection of the structural steel.

11. On August 29, 2003 the plaintiff delivered the leveling plates and anchor bolts. As it turned out there were numerous issues with the installation of leveling plates and anchor bolts by Hady which affected the steel erection, caused delay and increased the costs.

12. Mr. Savella admitted that the improvement was two weeks behind schedule as of October 1, 2003 and that the schedule had to be adjusted to site conditions. Specifically Hady’s work in the new addition was behind schedule at this point in time. At an onsite meeting with the Owner on October 3, 2003 Mr. Savella told the Owner that the completion date was pushed back to Christmas instead of November 30, 2003. Again at the construction meeting on December 2, 2003 Hady presented a new schedule for the project to the Owner which in turn was not complied with by Hady particularly the pouring of the slab.[^42]

13. Hady found that there was not enough granular material on site as represented by the owner to backfill including backfilling the new addition and that the granular material on site contained more organic material than was represented by the Owner. This caused a further unanticipated delay. In addition two buried oil tanks were found buried which affected the delivery by Hady’s subcontractor of foundation and backfilling work as tank removal required environmental concerns to be addressed.

14. The July 9, 2003 timetable called for the new addition to be ready for structural steel erection to commence on September 21, 2003. Backfilling was delayed with one of the problems being that backfill from the environs of Building B was too wet as there had been rain before and when the backfilling was carried out on September 29, 2003. On Monday October 6, 2003 Hady was still working on the installation of storm drains in the new addition. The stone for the new slab was not laid down at this time but later after the plaintiff’s forces and equipment were bogged down in mud and delayed from proceeding with their work.

15. On November 21, 2003 Hady was still backfilling the piers on lineA1 work which was scheduled to be completed prior to steel erection in the new addition. On December 1, 2003 Hady placed ¾ inch limestone in the new addition as a base for the slab work which in the Hady July 9, 2003 schedule was to be completed on September 29, 2003.

16. Steele erection in the new addition started on October 10, 2003 by the delivery of steel. Erection was interrupted almost immediately. The first was the responsibility of the plaintiff, namely the splice welds in six columns were rejected. The plaintiff expeditiously dealt with the resolution of the problem. The second was an interruption in steel erection flagged on October 16, 2003 the responsibility of Hady, namely that concrete was in the way and anchor bolts needed to be installed. On October 20, 2003 the plaintiff again highlighted that anchor bolts were bent and others were to short.

17. During the course of the plaintiff’s work it was delayed by weather. On October 20, 2003 the plaintiff advised Hady that the site conditions were not suitable for erection due to weather because there was no gravel on grade and as some of the columns were submerged in water. The situation was corroborated before me by photographs and the testimony of Mr. Bishay. There was rain and snow. Steel cannot be erected in rain or snow. The accumulation of rain was enough to turn the area of the new addition to mud. This was contributed to by Hady’s failure to have the site properly backfilled. Gravel had to be delivered and leveled delaying the plaintiff’s work. In addition on various days there was wind which also prohibited steel erection from going ahead.

18. Hady’s failure to pay invoices as required at one stage resulted in the pulling of the plaintiff’s forces doing steel erection off site and later threats to stop work contributing to the length of time needed to complete the plaintiff’s work. Hady knew on October 7, 2003 that the plaintiff had cash flow problems when Delta joists asked for direct payments but nonetheless thereafter chose not to make payments within 30 days after receiving an invoice as agreed.

19. Also contributing to the delay was Hady’s failure to deal with extras on a fair basis by insisting that the Change Order Procedure applied when it did not. The first issue which arose was that relating to extras identified by the plaintiff on August 6, 2003 because of changes in the plans. Despite repeated faxes the issue was still outstanding at the beginning of December, 2003 creating uncertainty as to whether the plaintiff would be paid for the extra work. When coupled with the unpaid invoices, the other extras and no written contract I find this state of affairs contributed to the length of time it took to complete the plaintiff’s agreed to work. .

20. The plaintiff never provided a binding schedule to Hady rather it provided a commencement date for the steel erection. As issues cropped up completion time changed and was revised. Hady throughout accepted the changes and did not purport to rely on the delay provisions in its form of contract. Hady’s position at best was that once the job is done we will be coming back at you. Without a contract specifying start time, length of time to complete and consequences for a breach thereof Hady is left with the burden of proof of demonstrating that the plaintiff’s work was not performed in a reasonable time.

21. In respect of structural studs the responsibility of another of Hady’s subcontractors the following findings by me bear on the question of delay:

(i) For the stucco work to proceed the structural studs had to be installed. The July 9 Hady timetable provided for 24 days commencing September 16, 2003 for the installation in Building C and a combined time of 17 days for both structural studs and stucco in the new addition commencing October 17, 2003.

(ii) Structural stud installation commenced on September 16, 2003 to September 29, 2003 for nine days, four days for the east side of Building C, one day for the east and north side of Building C, two days for the north side of Building C and two days for the north and west sides of Building C. On November 21, 2003 an additional day was spent on the north side of Building C. No further structural stud work was done on the north and east sides. In the result OC could have commenced stucco work after September 29, 2003 on the north and east sides of Building C.

(iii) There was no impediment to continue installing structural studs on the south side of Building C immediately following September 29, 2003. Structural studs were not installed on the south side until January 5 to 8, 2004 thus delaying the stucco work in that location. This delay is not attributable to the plaintiff as there was no impediment to doing the work on the south side in the same manner as on the north and east sides in order that the stucco work on the north, east and south sides of Building C could have been completed before winter conditions set in.

(iv) The installation of structural studs on the balance of Building C took 12 additional days commencing January 5, 2004. In total the number of days to install structural studs on Building C took 21 days whereas 24 days had been allocated. This highlights the fact that the times set out in the July 9, 2003 Hady timetable were at best estimates.

22. In respect of OC. the following findings by me bear on the question of delay:

(i) In the Hady July 9, 2003 schedule the duration of the stucco work for Building C was 23 days starting September 24, 2003 with a completion date of October 24, 2003. The plaintiff’s work was not a condition precedent to OC’s work on the north, east and south sides of building C save for just around the new entrance at the south-east corner. Similarly the plaintiff’s work was not a condition precedent to structural studs being installed in the same area which had to precede OC’s work. OC first came on site on October 23, 2003 notwithstanding it could have commenced its work as scheduled commencing with the east side of Building C which had structural studs installed by September 23, 2003 and completed its work on the north east and south sides prior to winter conditions setting in.

(ii) From October 23, 2003 until the end of November 2003 there were a total of 27 working days and OC only worked 19 of those days, 14 on Building C and 5 on Building B. Of the 14 days relating to Building C OC spent two days working on the north side, one day unloading insulation and 11 days on the east side.

(iii) The plaintiff finished its work in Building B on November 3, 2003. Hady did not have the studding work in Building B done until November 17, 2003. OC in turn did not start its work until November 21, 2003 working only 5 of the 6 available days to the end of the month. An additional 3 ½ days was required to complete the work after December 1, 2003. Such work was commenced on December 11, 2003. This was 3 ½ days work which should have been done prior to December 1, 2003.

(iv) On the evidence before