ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SR-322-2008
DATE: 201202 03

BETWEEN:

Marc Bertrand and Carole Bertrand Plaintiffs – and – 640195 Ontario Inc. c.o.b. under the name and style of Desrosiers & Fils Defendant

Gerald E. Langlois, Q.C. for the Plaintiffs
Robert Tolhurst, for the Defendant

HEARD: October 24, 25 and November 9, 2011

REASONS FOR JUDGMENT

CHARBONNEAU J.

[ 1 ] The plaintiffs, Marc Bertrand and Carole Bertrand, (Bertrand) bring this action against the defendant 640195 Ontario Inc. (Desrosiers & Fils) claiming damages for breach of contract. Desrosiers & Fils counterclaims for the amount it alleges is still owed by Bertrand for work done by Desrosiers & Fils pursuant to the same contract and for additional work beyond the terms of the contract.

BACKGROUND FACTS

[ 2 ] Bertrand owns a house situated at 3111 Avenue Du Quai in the Township of Alfred and Plantagenet. It is an old two-storey house, probably older than 100 years which was built in various stages. The main house enclosing a living area, the bathroom and the bedrooms was built first; a kitchen was added at the back, then a sunroom and a garage. After he purchased it Bertrand added an enclosed porch on the side of the house.

[ 3 ] The house did not have a full basement. There was only a four feet crawl space under the main building and a two feet crawl space underneath the kitchen.

[ 4 ] The house had a municipal assessed value of $59,000.00 in 2006. Bertrand had lived in the house approximately 20 years. He had made some plumbing and electricity renovations but no major renovations to the inside of the house.

[ 5 ] Bertrand decided that he wanted a full basement under the main part of the house including the kitchen area. At the suggestion of the defendant, the basement was extended underneath the side porch. The plaintiffs accepted Desrosiers & Fils’ estimate of $30,176.08.

[ 6 ] On September 24, 2006 the parties entered into a contract found at Tab 3 of Exhibit 1. The contract was signed by Yvon Desrosiers on behalf of Desrosiers & Fils and Marc Bertrand on behalf of the plaintiffs.

[ 7 ] Mr. Bertrand had difficulty obtaining mortgage financing to proceed with the project. He first attempted to obtain $80,000 in order to cover the defendant’s estimate, the payment on his existing mortgage and to pay for other renovations he was contemplating. He finally only got a loan of $58,000 from the Toronto Dominion Bank. One of the terms of the loan was that the bank would not advance more than $20,000.00 at the stage of the pouring of the foundation while the contract with Desrosiers & Fils called for a $10,000.00 deposit plus $19,000.00 at the pouring stage. Mr. Bertrand testified that he discussed this with Mr. Desrosiers who told him that would not be a problem.

[ 8 ] It was agreed between the parties that the work would be done in the spring of 2007. However, when Mr. Desrosiers called in March 2007, Bertrand had not yet obtained a building permit. When Mr. Bertrand applied for a permit from the municipality he was told by the municipal building inspector that he was required to file a plan of the proposed project. The plan had to be certified by a professional draftsman or the plan had to be the owner’s plan. Bertrand hired John Wenzel, a draftsman, to prepare an uncertified plan and submitted it to the municipality as his own plan as owner-builder. The direction of the joists under the main floor was inaccurately shown on the plan. The supporting beams were not properly indicated on the plan.

[ 9 ] The work only started in the summer of 2007, either in the latter part of July or early August. On August 1 st , 2007, Bertrand paid the $7,000.00 to cover the balance of the initial $10,000.00 deposit stipulated by the contract.

[ 10 ] By the spring of 2007, Christian Brodeur had purchased all the ownership of Yvon Desrosiers in 640195 Ontario Inc. As part of the deal, Yvon Desrosiers agreed to stay on as a salaried employee for two years. Mr. Desrosiers died in 2008.

[ 11 ] The parties made two major amendments to the work required to be performed by the defendant. One was set out in a new contract signed on August 13 th 2007, when the work started. The new written contract covered both the work contemplated by the original contract and detailed some additional work agreed to by the parties namely:

(a) Install and backfill four sonar tubes to be used for a future front balcony.

(b) Lift the garage, build a footing and a concrete slab and sit the garage back on that footing and floor. No specifications were given for the size of the footing or the floor.

(c) Haul away the concrete of the old foundation and chimney.

[ 12 ] The contract specifically excluded “metal beams” from the price quoted. It also modified the schedule of payments to indicate that $24,000.00 was now payable at the pouring of the foundation. The new total contract price was $34,168.00 net of taxes as compared to the original $28,468 net of the taxes for the original contract, a difference of $5,700.00.

[ 13 ] The parties later concluded an oral agreement covering the following additional work:

b) Installing pieces of wood at the base of the existing walls of the house where they met the new concrete foundation walls. This work was to be done by Mr. Bertrand but he was injured and he hired the defendant to do it.

b) The defendant also agreed to supply and install three metal beams and six jack posts to better support the house on the new foundation.

b) Make certain repairs to re-enforce the existing floor including fabricating and installing new wooden beams under the floor.

[ 14 ] Desrosiers issued two invoices for the work agreed to orally, both dated October 3, 2007, namely numbers 2451 and 2452. Invoice 2451 at Tab 7 of Exhibit 1 lists the following:

• Installing and repairing wood between house and
  foundation, installing metal beams and jack posts,
  105 hours @ $20/hr $2,100.00

-3 Metal beams 980.30

-Transport 65.00

-6 Jack posts 257. 70

Total Net of Taxes $3,403.00

Invoice 2452 describes the work to make repairs to the floor and the price of wood

for a total net of taxes $1,980.09

Total “extras” Net of Taxes $5,383.09

[ 15 ] Bertrand made the following payments on the following dates:

November 14, 2006 $3,000
August 2, 2007 7,000
September 5, 2007 10,000
September 18, 2007 5,000
October 10, 2007 5,000
October 26, 2007 3,000

Total $33,000

[ 16 ] The last direct contact between Mr. Bertrand and Mr. Brodeur occurred on October 26, 2007. There is conflicting evidence as to what was said between them at that time. It is clear however that Mr. Bertrand had received the invoices for the extras at that time. Mr. Brodeur was demanding more money and Mr. Bertrand did not give him more money.

[ 17 ] On October 26, 2007 the garage was still lifted and supported by temporary supports belonging to Desrosiers & Fils. The concrete slab and footing for the garage had not been poured and the old broken concrete had not been hauled away.

[ 18 ] At one point, the municipal inspector stopped at the site and indicated that he would not approve the proposed floating concrete footing and slab for the garage. He indicated he would require that the foundation be installed below the frost line.

[ 19 ] The municipal inspector first inspected the site on September 4, 2007. In his report filed as part of Exhibit 4, he approves the foundation work as being ready to receive the concrete. In his second report, dated October 2, 2007 he confirms that the foundation is now ready for backfill. He did not return for a formal inspection afterwards because he was never called to attend. As indicated, he did happen to informally stop by the house when he saw that a floating slab was almost ready to be poured. He advised the contractor he would not approve such a foundation for the garage. The foundation work actually performed by the defendant met all requirements of the Building Code.

[ 20 ] Bertrand only put the garage back down on the ground in June 2008. The garage was taken apart and removed. Bertrand’s insurers, at one point, terminated his insurance policy because of the state of disrepair of the property. The plaintiff had to buy a much more expensive policy.

[ 21 ] At the request of Bertrand and his counsel, the municipal inspector came back to inspect the property on August 9, 2009. In his report, he describes the following items which required to be modified.

• Install a beam underneath the floor between the kitchen and the solarium wall;
• Install a beam underneath the floor between the kitchen and the side porch wall;
• Install a beam underneath the beams of the existing floor above the older front part of the house;
• Install a jack post under that beam;
• Anchor all jack posts to the beams.

[ 22 ] The defendant sent a registered letter to Bertrand on December 26, 2007 asking for the immediate payment of the two invoices for extras and the balance of the contract for a total of $11,606.45, which included taxes and interests to date. In default, the defendant threatened Bertrand with a court action. On January 17, 2008 the defendant had his lawyer send a demand letter to Bertrand. On April 23, 2008 Desrosiers & Fils started an action in Small Claims Court against Bertrand.

[ 23 ] On April 25, 2008, Bertrand started the present action against Desrosiers & Fils. The defendant issued a counterclaim.

THE POSITION OF THE PLAINTIFFS

[ 24 ] The plaintiffs argue that Desrosiers & Fils breached the contract when it stopped all construction and left the site with the garage still up in the air. The contract clearly stipulated that the balance for the work was due at the end of the work (“à la fin des travaux”) and they argued the work was not yet done.

[ 25 ] Secondly, the contract contained an implied term that the defendant would carry out the work in a good and workmanlike fashion. The plaintiffs submit that it was not only to lift the house and put it down on the new foundation without causing damages to the house but moreover, the plaintiffs contend that the contract imposed an obligation on the defendant to ensure that the house could be properly supported once the new basement was built and all aspects of the floor and structural support of the house on the new foundation had to meet the specifications of the code. It was argued that the defendant had represented to the plaintiffs that it had the knowledge and experience to do so. It was reasonable for the plaintiffs to rely on the defendant’s expertise. The defendant, it was submitted, wrote the contract and did not include any exculpatory clauses.

[ 26 ] The plaintiffs also submitted that the defendant was negligent by not properly inspecting the building beforehand. An inspection would have revealed the true direction of the joists and beams and the need for further support as set out in the inspector’s report once the new basement had been built.

[ 27 ] The plaintiffs ask the Court to totally reject the evidence of the expert witness called by the defendant because the expert Mr. Dagenais was utterly biased against the plaintiffs. In blaming the poor condition of the house as the sole reason for the problems, the plaintiffs claim Dagenais had only looked at the defendant’s side, had gathered information only from the defendant and had never addressed the workmanship of the defendant.

[ 28 ] Finally, the plaintiffs submit that they are left with an unliveable and unmarketable house which will require extensive repairs to bring it to an acceptable condition. The plaintiffs submit the defendants are liable to pay for the following work to bring the house to a satisfactory condition and meeting the specifications of the code:

a) The area where the garage was sitting will need to be cleaned, levelled and compacted; the old material hauled away, the outside of the kitchen wall repaired at a cost of $15,000.00.

b) A new garage will have to be built at a cost of $19,000.00. The garage will have to be insulated at a cost of $7,000.00. The garage foundation will have to be built below the frost line.

c) The dirt caused by the overall construction will have to be removed, top soil will have to be applied and then the area will have to be seeded at a cost of $6,000.00.

d) The concrete posts built by the defendant on the front deck will have to be cut at the same level and a front porch built at a cost of $5,000.00.

e) A new clothes line, to replace the one destroyed by the defendant, will have to be built at a cost of $1,200.00.

f) The driveway will have to be levelled and 8 inch of gravel installed at a cost of $2,800.00.

g) The work to make the corrections to the floor required by the inspector will cost $6,550.00.

h) Finally, new cupboards will have to be installed at a minimum cost of $18,000.00 and some repairs will have to be done to the walls and ceiling of the kitchen and living room at a cost of $5,500.00.

THE DEFENDANT’S POSITION

[ 29 ] The defendant argues that the plaintiffs assumed and were responsible for the planning of this work. The municipality accepted the plan prepared by Bertrand as a builder-owner. Bertrand chose to have an uncertified plan used to save money. The plan turned out to be inaccurate. The existing support under the floor turned out to be insufficient to support the house after the basement was built. Desrosiers & Fils did not assume any responsibility beyond carrying out the specific work described in the contract. The contract did not require the defendant to verify the condition of the existing support. It was the plaintiffs’ responsibility to ensure that the house, once on the new foundation, met the requirements of the Building Code.

[ 30 ] The defendant also submits that it was entitled to walk away and refuse to continue with the work when the plaintiffs clearly indicated they would not pay any further sums. The plaintiffs had the invoices for the ‘extras’ at that time. The plaintiffs had promised to pay for the work and were now refusing to pay. These extras were due at that time and they were for work not covered by the written contract.

[ 31 ] The defendant submits that the plaintiffs are the authors of their own misfortune because:

1. The budget they made for the project was unrealistic.

2. The plan they used for the work was not reflective of the real condition of the house and the overall project could not meet the specifications of the code.

3. They stopped making payments when they were under the legal obligation to make them and it was clear they did not intend to pay at any time in the future.

[ 32 ] The defendant submits that Mr. Dagenais was not biased. He confirmed that some of the work done by the defendant would not have been satisfactory in certain conditions and that given the age and condition of the house the work was acceptable.

[ 33 ] The defendant submits that should the court find that the defendant breached the contract, then the plaintiffs are only entitled to be put back in the position they would have been if the breach had not occurred. Here, the plaintiffs are asking for a new house. The damages claimed exceed the value of the house before the new foundation was built.

[ 34 ] Finally, the defendant claims to be entitled to judgment against the plaintiffs in the amount of $6,706.00 representing the amounts of the two invoices for extras and $1,000.00 remaining due on the original contract.

THE ISSUES

THE CLAIM

1. Are the witnesses credible?
2. What were the terms of the written contract of August 13, 2007?
3. Did the defendant breach this agreement?
4. If the defendant breached the contract, what are the damages suffered by the plaintiffs as a result of that breach or breaches?

THE COUNTERCLAIM

1. What were the terms of the two oral contracts between the parties concerning the so-called “extras”?
2. Did the defendant breach any terms of that contract and if so, what are the plaintiffs’ damages?
3. What amount, if any, are the plaintiffs liable to pay to the defendant for the “extras”?
4. What amount, if any, remains due on the written contract?

ANALYSIS

THE CLAIM

1. ARE THE WITNESSES CREDIBLE?

[ 35 ] As a general rule I have found all the witnesses to have been credible in the sense that they answered all questions in a straightforward manner without exaggeration or obvious dishonesty. On the contrary, the witnesses appeared to try to give their evidence honestly. This applies also to the evidence of Mr. Dagenais. I will return to him later.

[ 36 ] Although credible, I found that the testimony of the witnesses do not have the same weight on all the issues. This was due mostly to a question of reliability rather than credibility. Moreover, in some cases, for different reasons, a witness was unable to offer any meaningful evidence on certain issues.

[ 37 ] In relation to Mr. Dagenais his mandate was to review the work performed by Desrosiers & Fils in order to determine if it was properly done and also if it met the Ontario Building Code. It is clear from the evidence of the plaintiffs and their pleadings that they had no quarrel with the concrete foundation work up to the time when the house was ready to be brought back down on the foundation. His evidence must be examined in that context. The plaintiffs have three major complaints with the defendant’s performance. Firstly, they question the adequacy and proper workmanship of the repairs done underneath the kitchen floor to re-enforce the structure which is the subject of “extras”, in invoice number 2452. However, they do not quarrel with the work done on the bottom of the walls to sit the house level on the new foundation nor the installation of metal beams and jack posts which were the subject of the “extras”, in invoice number 2452. Secondly, they claim the defendant was negligent when it brought down the house on the foundation causing damages to the kitchen area. Thirdly, they complain that the defendant had not completed the work as required by the Building Code namely the foundation for the garage and proper reinforcing supports for the house once it was sitting on the new foundation and that was later required by the building inspector in his August 2009 report.

[ 38 ] Mr. Langlois submits that Mr. Dagenais was utterly and totally biased for the following reasons:

1. He only obtained information from the defendant and avoided obtaining the plaintiffs’ position on the issues.
2. He never addressed the workmanship of the defendant but rather limited himself to blaming the condition of the house.
3. He offered his opinion on what were the legal terms of the contract and his opinion was clearly an interpretation favourable to the defendant.
4. He testified that he recalled seeing damages in the kitchen when he attended for totally unrelated reasons in March 2006. Mr. Langlois submits his vivid memory of that occasion is not believable in the circumstances and points to the fact that Mr. Dagenais failed to include this in his report.

[ 39 ] I find Mr. Dagenais a credible expert. He clearly indicates in the background information at the beginning of his report on what information he is relying to put context to his ultimate opinion on the workmanship of the defendant’s work. It is normal and in fact essential that an expert sets out the assumptions on which rests his opinion. Some of the assumptions he was making referred to the terms of the contract namely that Bertrand was a builder-owner in charge of the overall contract and the work to be done by the defendant was limited to the work set out in the contract. This was a reasonable assumption in the circumstances. Although the validity of these assumptions are ultimately for the court to decide, the expert must indicate the limiting assumptions on which his decision is made. The information on which he based his opinion was very clearly set out and he did not hide the fact that he obtained most of his information from the defendant. However, he clearly sets out the eleven fact gathering steps he took which included an interview with Mr. and Mrs. Bertrand and a review of the statement of claim.

[ 40 ] Mr. Dagenais referred to several aspects of Desrosiers’s workmanship. He was critical of the knee wall built by Desrosiers as not being the best way to ensure that the house was levelled on the new foundation. He indicated it would have been better for Desrosiers & Fils to warn Bertrand that surprises could arise because of the age of the house. He admitted that a number of beams were missing to meet code requirements. He conceded that some of the re-enforcing work could have been done better. Therefore, it is unfair to say that Mr. Desrosiers opinion was one-sided and biased.

[ 41 ] I agree with Mr. Langlois that Mr. Dagenais had a pretty specific memory of the observations he made when he went at the house in March 2006. It is true that his visit was brief and unrelated to problems with the interior of the house. However, Mr. Dagenais is a professional engineer who specializes in construction work. It is normal that he would see things and remember things about the condition of a house he sees which the ordinary person would not. He testified he sat in the kitchen when he made these observations. He candidly admitted that he could not say exactly where he saw the gap in the walls and also that the gab he saw was less than the gap he had seen in 2009 when preparing his opinion.

[ 42 ] It is noteworthy that Mrs. Bertrand was called as a reply witness in respect of the visit of Mr. Dagenais in March 2006. She confirmed that someone came to their house in relation to their insurance claim for their pool but she did not recognize Mr. Dagenais as the one who came. What is important is that she was not asked at that time to contradict the evidence of Mr. Dagenais on the condition of the kitchen at that time. It would have been a simple thing to do if she could offer contrary evidence. There is in fact no evidence to contradict Mr. Dagenais’ evidence on the state of the kitchen in March 2006. The three pictures found at Tab 21 of Exhibit 1 were taken around the year 2000 according to Mr. Bertrand, well before Mr. Dagenais’ visit.

[ 43 ] I, therefore, conclude that Mr. Dagenais gave his opinion in an honest and unbiased fashion.

2. WHAT WERE THE TERMS OF THE WRITTEN CONTRACT OF AUGUST 13, 2007?

[ 44 ] I refer only to the contract of August 13, 2007 because I find that all the terms of the 2006 contract were fully incorporated into the 2007 contract. I find that the work that the defendant undertook to do is clearly set out in the written contract. Similarly, the price agreed to be paid by the plaintiffs is clear. There is no ambiguity whatsoever as to the express terms of the contract except for the reference to the exclusion of the metal beams. This is an ambiguity in the sense that it is not clear whether the work to install the metal beams is also excluded in the quoted price. I will deal with that when I deal with invoice No. 2451.

[ 45 ] I find that the contract contained an implied term that the defendant would carry out the foundation work in a good and workmanlike manner. However, I reject Mr. Langlois’ submission that the contract also contained an implied term that the defendant undertook that the house could be put back on the new foundation without further work and that if somehow work to re-enforce the house structure was required, the defendant assumed the responsibility to do it and ensure that it complied with the Building Code. To read such an implied term in the contract would be to re-write the contract the parties made.

[ 46 ] My review of the totality of the evidence leads me to the conclusion that Mr. Bertrand assumed the role of builder-owner in this project and it was his responsibility to ensure that the overall project met the Building Code. I come to that conclusion for the following reasons:

1. The terms of the contract were clear and it was silent on many items that would necessarily need to be done to complete the overall project.

2. Bertrand applied for the building permit, obtained a plan, decided to proceed with an uncertified plan and clearly approached the municipality in his capacity as owner-builder.

3. Bertrand had reserved for himself other aspects of this project namely: installing wood at the bottom of the walls, the building of a staircase into the basement and the construction of the front porch.

4. The evidence clearly establishes Mr. Bertrand had undertaken work on his own in the past namely building the side porch, electricity and plumbing work.

5. When it was decided to build a concrete foundation for the garage, he took the decision not to return to the municipality to have the work approved although he knew his original application was silent in that regard.

6. When he hurt himself, he negotiated a separate contract with the defendant to finish the bottom of the walls.

7. The work needed to re-enforce the structural support was discussed with the defendant only after the house was lifted. There was never a question at that time that Mr. Bertrand was under the impression the original contract required the defendant to do that. Mr. Bertrand testified that Mr. Desrosiers suggested to him it would be a good idea to re-enforce the floor and Mr. Bertrand told Mr. Desrosiers to go ahead and do the work.

[ 47 ] Mr. Langlois was not able to refer the court to any evidence which supports his contention that the defendant had assumed the overall viability of the project. His submission in this respect is that the defendant had the knowledge and experience and the plaintiffs had none and somehow this should give rise to the contractual obligation in question. There is no evidence to support the allegation that such a contractual obligation was agreed to by the parties. There is no evidence that would allow the Court to imply such a term.

[ 48 ] I, therefore, find that the totality of the defendant’s contractual obligation are clearly set in the list of work he undertook to do and that he undertook to perform that work in a good and workmanlike manner and nothing else.

3. DID THE DEFENDANT BREACH THE WRITTEN CONTRACT?

[ 49 ] I find the defendant did not complete all the work he undertook to perform in relation to the garage. He did not build a concrete slab and footing for the garage and he did not put back the garage on that foundation. As I will discuss later, the plaintiff was in large part responsible for this. Secondly, he failed to haul away the concrete debris from the old foundation and chimney.

[ 50 ] I find that the defendant failed to lower the house in a good and workmanlike manner and that the more rapid than necessary lowering of the house caused some damage to the cupboards and walls of the kitchen. I accept Mrs. Bertrand’s evidence that a loud bang accompanied the lowering of the house and that the cupboards were damaged, the cupboard doors were forced opened and she noticed an indent in the carpet at the door between the kitchen and the living room.

[ 51 ] Finally, there is some evidence that the concrete post for the future front porch were not levelled. This was a breach of the good workmanship term of the contract.

[ 52 ] On the underhand, I do not find the defendant breached the contract by not building a frost level foundation for the garage. This was more extensive work than they had agreed to do. As indicated earlier, it was Bertrand’s obligation to consult with the municipality when the work for the garage was discussed. If he had done so he would have found out a floating slab would not be approved by the municipality. I find the plaintiff could not insist for more then a floating slab as was agreed. Bertrand’s failure to consult the municipality created the impasse.

[ 53 ] Similarly, the work required to properly re-enforce the structure as required by the municipal inspector in 2009, was not part of the work the defendant undertook to do. The plaintiffs at paragraph 13 allege that the defendant was negligent because it undertook a construction project for which the defendant was neither properly equipped nor sufficiently competent to complete. I reject this allegation for the following reasons:

1. The defendant only undertook to do what is specifically set out in the written contract.

2. The plaintiff was well aware of the age and condition of his house and did not, in any way, ask for any guarantees from the defendant about the viability of the project. Although Mrs. Bertrand testified that Mr. Desrosiers told her it could be done without problems, it is clear that all discussions were between Mr. Bertrand and Mr. Desrosiers and I therefore put no weight on that part of her testimony.

3. Once the house was raised Desrosiers recommended that the floor be re-enforced and Mr. Bertrand told him to go ahead. It is the opinion of Mr. Dagenais that the work performed by the defendant was acceptable given the condition of the house. Although that work did not meet all Building Code specifications it was certainly better than not proceeding with the re-enforcement as the original contract called for. I accept Mr. Dagenais’ evidence on that issue.

[ 54 ] Nor was the defendant under the obligation to build a new garage, a front porch, a new driveway or restore the site complete with the seeding of a new lawn as now claimed by the plaintiffs.

4. WHAT ARE THE DAMAGES SUFFERED BY THE PLAINTIFFS AS A RESULT OF THE DEFENDANT’S BREACH OF CONTRACT ?

[ 55 ] The well recognized principle in this area of the law is that a plaintiff should, so far as it can be done by money, be placed in the same position as he would have been if the contract had been performed: Sally Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301 .

a) DAMAGES TO THE KITCHEN AND CUPBOARD

[ 56 ] I find that the cupboards were at least 50 years old. The plaintiffs’ contention that they are entitled to have new cupboards installed is excessive and unreasonable. I accept the evidence of Mr. Dagenais that the state of disrepair to the kitchen’s walls, floor and cupboard was already extensive before the house was lifted and set back on the new foundation. The plaintiffs have conceded these cupboards were over 50 years old. I only grant nominal damages of $1,000.00 for any additional damages suffered by the plaintiffs on this aspect of their claim.

b) THE CLOTHES LINE

[ 57 ] I find the defendant damaged the plaintiff’s platform used as a deck for the outside clothes line. The only witness who provided evidence about this aspect of the claim is Carole Bertrand. She described it as a long oval deck which had previously been used as the pool deck. She indicated that it had been damaged by a piece of machinery of the defendant during the construction work. At Tab 6 of Exhibit 2, Mrs. Bertrand identified the deck in question on several photographs. The deck still appears intact after the house had been put back down on the new foundation. However, the garage had not yet been lifted and the damage likely occurred during that phase of the work.

[ 58 ] Mr. Nadon testified that he had completely rebuilt a new deck at a cost of $1,200.00. He admitted he had not seen the clothes line before it was damaged.

[ 59 ] In his first quotation on December 11, 2005, Mr. Nadon only indicates “réparé le poteau de corde à linge”. It is included with repairs to the interior of the house including the cupboards and wall for a total of $6,000.00. It was viewed as a minor item in December 2007. The clothes line is well shown in three pictures taken by Mr. Nadon on August 15, 2007. The deck is still standing although some damage is seen underneath and the post is in fact not straight?

[ 60 ] I find the deck in question was old and still in a repairable condition when the photo was taken in August 2007. The plaintiffs provided no evidence that they brought any claim in relation with it at the time the defendants were still on the construction site. The claim for a new deck is unreasonable and I only allow nominal damages of $200.00 for this item.

c) THE POSTS FOR THE FRONT PORCH

[ 61 ] The evidence of the damages suffered by the plaintiffs in relation to this item is again problematic. The work required is cutting the post to the same height. In the first estimate the price quoted to completely do the porch is $3,950.00 while in the subsequent estimate it is $5,000.00. I find cutting the post would be a very small part of the overall work. I only allow nominal damages of $100.00 .

[ 62 ] The plaintiff’s decision not to proceed to any repairs to the house is unreasonable. They indicate they wanted to preserve the evidence. This is not a reasonable explanation. The total estimate of damages provided by Mr. Nadon in December of 2007 was $51,463.00 while he provided a revised estimate totalling over $114,050 in 2009 to do the same work. The plaintiffs’ first statement of claim sought damages of $50,000.00 which was the maximum in 2008 for simplified proceedings. The plaintiffs then increased their claim to $100,000.00 in 2011 when the limit for summary trial proceedings was raised to $100,000. I reject both estimates of Mr. Nadon as excessive and unreliable. I also find excessive and unreasonable generally the plaintiffs’ claim for damages. It is obvious the plaintiffs are trying to get a new home out of this litigation and that what they are claiming is way beyond any damages they have actually suffered. At the very least they certainly failed to mitigate their damages by not proceeding to repair in a timely manner. The plaintiffs are not entitled to pre-judgment interest in these circumstances.

[ 63 ] As indicated above, I find the plaintiffs are therefore entitled to damages in the total amount of $1,300.00 .

COUNTERCLAIM

1. WHAT IF ANYTHING IS OWED ON THE WRITTEN CONTRACT?

a) THE GARAGE

[ 64 ] As indicated, the defendant failed to complete the work he undertook to do in relation to the garage namely installing a ‘floating’ foundation and setting the garage down on it.

[ 65 ] Although there is some ambiguity about why the defendant failed to proceed with that part of the work, Mr. Brodeur testified that he felt justified in stopping the construction because Mr. Bertrand told him he would not pay him any further sums. At that time, Mr. Brodeur came to the conclusion Mr. Bertrand would not pay for the extras or any balance on the contract.

[ 66 ] I find the defendant was justified in leaving the construction without completing all the work it had undertook because the plaintiffs were asking him to do more extensive work than was agreed without offering more money to do so.

[ 67 ] However, I find the defendant was not entitled to insist on the payment of the two invoices before completing the work. The so-called “extras”, except for the metal beams and jack posts, were additional work which the defendant agreed to complete outside the scope of the original contract. No terms of payment had been agreed to on that particular work. It was up to the defendant to specify the terms of repayment and include the right to leave the construction site in default. There is a total absence of evidence on these points.

[ 68 ] Moreover, I agree with the plaintiffs that the defendant could only charge them for the costs to supply the beams and jack posts and not their installation. The decision to install the metal beams was reached before the contract of August 13 th , 2007 was signed. The more logical interpretation of the “N.B.” clause at the bottom of the contract is that the metal beams only were excluded. I find the clause is ambiguous but the defendant drafted it and I find that by specifically excluding the metal beams without also excluding their installation means that he was not excluding the installation cost in the contract price.

[ 69 ] I reject the plaintiffs’ suggestion that they are entitled to a new attached garage set on below frost foundation. This is not what the defendant undertook to do.

[ 70 ] I find the plaintiffs are entitled to a credit for the work not done by the defendant. The only evidence enabling the court to quantify those damages is the quote of the defendant back in 2007. I find that the defendant was charging $5,200.00 plus taxes for the work specifically relating to the garage. This is clearly set out at Tab 1 of Exhibit 2. The defendant actually lifted the garage as required and $1,000.00 had been agreed for that work. The plaintiffs are therefore entitled to a credit of $4,200.00 .

b) HAULING THE “DEBRIS DE CIMENT DE LA VIELLE FONDATION ET DE LA CHEMINEE ”

[ 71 ] The defendant had added $500.00 to the original contract to do this work. Mr. Nadon, in his estimate, does not address this specific item. He mentions the removal of the items only in the context of the larger restoration of all the property. I am therefore left with only the evidence of the defendant’s quote of $500.00. The plaintiffs are entitled to a further credit of $500.00 .

[ 72 ] The plaintiffs were responsible under the written contract to pay $34,230.00 before tax. They are entitled to a credit of $4,700.00 for work not done in relation to the garage and the removal of debris for a total contract price with tax of ($29,530.00 + 1,771.80) $31,301.80. The plaintiffs paid $33,000.00 to the defendant and therefore they are entitled to the return of an overpayment of $1,698.20 .

2. INVOICE #2451

[ 73 ] I have already found that the installation of the metal beams including the jack posts holding them was included in the contract price. The contentious sum claimed by the defendant is therefore the $2,100.00 for both the work to do the knee wall and the installation of the beams and posts. The only particular given in the invoice is a total of 105 hours at $20.00 per hour.

[ 74 ] I accept Mr. Brodeur’s evidence that the total sum reflects the total number of hours spent by his men on that particular work even though at the time of trial he did not have the time records themselves. I am satisfied that the invoice detailing the hours worked was provided to Bertrand shortly after the work was done.

[ 75 ] The difficulty resides in determining how many hours were spent on the knee wall and how many hours on the installation of the beams and posts.

[ 76 ] The plaintiffs have admitted that they are responsible to pay the defendant the installation of the knee wall. The evidence convinces me that it would have been much more time consuming to install the knee wall all around the perimeters of the house than to install three metal beams and six jack posts. Our Courts have long recognized that it will be necessary in some cases to estimate the loss even where guess work is involved, as long as the loss has been proven: see Wood v. Grand Valley Ry . Co (1914), 22 OLR 614 .

[ 77 ] I estimate that the construction of the knee wall totals 66% of the total hours claimed. I, therefore, find the plaintiffs owe in relation to invoice No 2451 the sum of $2,865.18 inclusive of taxes. ($2,703.00 + 162.18).

3. INVOICE NO 2452

[ 78 ] I have already found that the plaintiffs asked the defendant to perform re-enforcing work to the floor structure once the house had been lifted. I have also found that work was not included in the work outlined in the written contract. The plaintiff is liable to pay the defendant for that work.

[ 79 ] There is contradictory evidence between the evidence of Mr. Nadon and Mr. Dagenais as to the acceptability of this work as indicated earlier. I accept Mr. Dagenais’ evidence that the work performed given the condition of the house and the general context of the contract between the parties is acceptable.

[ 80 ] It must be noted that the plaintiffs have had the benefit of this work since 2007. There is no evidence that the alleged defects noted by Mr. Nadon have caused any structural instability. No claim has been made to correct anything specifically related to that work. I find that the plaintiffs have benefited from the defendant’s work and agreed to pay for same. The defendant is entitled to be paid.

[ 81 ] The details of the hours spent to perform this work were provided to the plaintiffs in early October 2007. There is no indication that the plaintiffs raised any objection to the amount claimed at that time. I find the plaintiffs owe the defendant $ 2,098.89 for that work.

[ 82 ] I therefore award the defendant the total sum of $4,964.07 on their counterclaim.

CONCLUSION

[ 83 ] The plaintiffs are entitled to judgment in the amount of $2,998.20 on their claim.

[ 84 ] The defendant is entitled to judgment in the amount of $4,964.07 in its counterclaim.

[ 85 ] I, therefore, grant judgment to the defendant in the set-off amount of $1,965.87 plus pre-judgment interest at the Court of Justice Act rate from January 1, 2008 to the date of judgment.

[ 86 ] If counsel deem it advisable, I will entertain brief written submissions on costs. The defendant will provide same within 15 days and the plaintiffs will have 10 days to reply.

Charbonneau, J.

Released: February 3, 2012

COURT FILE NO.: SR-322-2008
DATE: 20120203

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Marc Bertrand and Carole Bertrand, Plaintiffs - and - 640195 Ontario Inc. c.o.b. under the name and style of Desrosiers & Fils, Defendant REASONS FOR JUDGMENT Charbonneau, J.

Released: February 3, 2012