CITATION: Grainger v. Flaska, 2013 ONSC 4863
COURT FILE NO.: CV-12-455097
DATE: August 8, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHEN L. GRAINGER
R. Spinks, for the plaintiff (defendant by counterclaim)
Fax: 416-941-8852
Plaintiff (defendant by counterclaim)
- and -
ASTRID FLASKA
Astred Flaska representing herself
Tel: 416-445-8242
Email: astridlani@hotmail.com
Defendant (plaintiff by counterclaim)
HEARD: July 16 and 17, 2013
Master C. Albert
I. Background
[1] Astrid Flaska owns a home at 2437 Bayview Avenue in Toronto where she has lived for 26 years. After repairing a roof leak, and with her daughter’s wedding approaching, she decided to refresh her home. Ms Flaska hired contractor Stephen Grainger to carry out renovations and improvements. He worked for her for eleven weeks. She paid him for seven.
[2] On May 24, 2012 Mr. Grainger registered a claim for lien for $30,716.00[^1]. Ms Flaska counterclaims for deficiencies, a refund of all monies paid, accommodation expenses and cleaning costs. She admitted at trial that despite promising to pay Mr. Grainger at the end of the job for the last four weeks of work, she had no intention of paying him for more than the first seven weeks of work. She explained that she did not complain to him that it was costing too much because she was afraid he would leave before finishing the work.
[3] Ms Flaska’s complaints are that Mr. Grainger overcharged for the work, that the house did not need all of the work that Mr. Grainger carried out, that she paid too much, that the work was deficient and that Mr. Grainger did not properly clean her home when he finished.
[4] Ms Flasks contends that the Consumer Protection Act, 2002, S.O. 2002, c.30 entitles her to the benefit of Mr. Grainger’s work and the improvements to her home without paying for them because the contract with Mr. Grainger was not in writing.
[5] For the reasons set out below I find that Ms Flaska must pay Mr. Grainger for his work, with an appropriate set-off for cleaning and some minor deficiencies.
II. Issues
[6] This case raises the following issues:
a) What were the terms of the contract?
b) Did Mr. Grainger perform the contract work?
c) What is the value of the labour and materials Mr. Grainger supplied to Ms Flaska, either contractually or on a quantum meruit basis?
d) What is the value of deficiencies and completion costs?
e) Does consumer protection legislation preclude Mr. Grainger from getting paid?
III. The Witnesses
[7] The reference trial proceeded as a summary trial with affidavit evidence in chief filed in advance of trial and time limited cross-examination and redirect examination conducted viva voce at trial. The plaintiff called only one witness: himself. The defendant called three witnesses: herself, her daughter Lani Flaska and contractor Jack Hope as an expert witness.
[8] Stephen Grainger has been a contractor for thirty years. His evidence was consistent, forthright and unshaken on cross-examination. He was a credible witness and I find his evidence reliable.
[9] When this reference began Astrid Flaska was represented by counsel. Five weeks before trial she served a notice of intention to act in person. The court recognizes the challenges faced by a party representing herself. My comments regarding credibility and reliability of evidence pertain to her testimony and not to the manner in which she conducted the trial.
[10] Astrid Flaska was an unfocussed witness. She was non-responsive to many of the questions asked of her on cross-examination. She would ignore questions asked and speak instead about her woes. She would deliver argument from the witness box while under cross-examination, but when it came time to present oral argument on the second day of trial she failed to appear, instead sending her daughter with the message to continue the trial without her[^2].
[11] Ms Flaska’s affidavit evidence in chief was drafted when she was still represented by counsel. Her oral evidence at trial conflicted with her affidavit evidence on several occasions. For example, in her affidavit she deposed that Mr. Grainger gave her an estimate for additional work on March 2, 2012, several weeks into the job. At trial and in her written argument she testified and argued that he gave her the quote at the beginning of the job. Her evidence at trial on this factual issue cannot be accurate because a quote given at the beginning of the job would have included the paint, wallpaper and plaster work for which Ms Flaska had hired Mr. Grainger initially. Instead, the written quote is only for replacing windows and renovating bathrooms. I find that Ms Flaska changed her evidence at trial in an attempt to better her position.
[12] I find the reliability of Astrid Flaska’s evidence questionable for a second and more serious reason. The parties had agreed that Mr. Grainger would invoice Ms Flaska weekly and she would pay him weekly. She stopped paying Mr. Grainger’s weekly invoices after invoice #7, holding out to Mr. Grainger that she would pay him for weeks eight through eleven at the end of the job. He trusted that she would pay him for the last few weeks at the end of the job based on her promise to pay and agreed to continue to supply services and materials.
[13] At trial Ms Flaska testified that she deliberately lead Mr. Grainger to believe that she would pay him at the end of the job because she feared that if she did not promise to pay he would not return and finish the job, leaving her house a mess. With her daughter’s wedding day approaching she needed the work completed. She admitted at trial that she had deliberately deceived Mr. Grainger in this manner with no intention of paying him after invoice #7. I find this behavior dishonest and deceitful. It leads me to conclude that she is not a credible witness. Where the evidence of Astrid Flaska conflicts with that of Mr. Grainger I prefer the evidence of Mr. Grainger.
[14] Lani Flaska is Astrid Flaska’s daughter. She did her best to tell the truth as a witness but she does not have much personal knowledge of the facts in issue in this case. She attended at the house weekly with her mother but her impression that there did not appear to be much progress is unhelpful. Much of the work in a renovation project such as this one is not readily visible to the lay person. For example, it could take hours to painstakingly remove layer upon layer of old wallpaper where, as in this case, some of the layers had been painted overtop. Plumbing and electrical work behind walls is not readily visible but can be time consuming. Lani Flaska’s understanding of progress was predicated on visible changes. I find most of her evidence unhelpful.
[15] Jack Hope has more than forty years of experience as a contractor. Ms Flaska called him as an expert witness. Mr. Grainger did not challenge his credentials and the court accepted Mr. Hope as an expert. He testified in a forthright manner. He explained the assumptions on which his two reports are based. He remained impartial in his testimony. He is a credible witness. Unfortunately, his evidence is not helpful to the court because it is based on flawed assumptions and unreliable costing data.
IV. Analysis
a. Terms of the contract
[16] It is not in dispute that Ms Flaska and Mr. Grainger entered into a verbal time and materials contract. Mr. Grainger quoted an hourly rate of $75.00 for labour but the parties negotiated a rate of $50.00 per hour plus reimbursement at cost for materials paid for by Mr. Grainger. According to the invoices HST is included in the amounts charged. The contract further provided for Mr. Grainger to issue invoices weekly and for Ms Flaska to pay the invoices as they were issued. The contract did not specify a completion date. Nor were there any contractual terms regarding payment for alternate accommodation during the renovation.
[17] The original scope of work included repairing plaster damaged by a roof leak, removing old wallpaper, repairing damage to the walls, plastering and painting. Partway through the work Ms Flaska and Mr. Grainger agreed to expand the project to include renovating two bathrooms: the main bathroom was to be refreshed and the ensuite was to be gutted and redone completely.
[18] Ms Flaska contends that the contract allowed Mr. Grainger to provide no more than forty hours of labour a week for two labourers, for a maximum of 80 hours of labour per week. On that basis her weekly payments would not exceed $4,000.00. She takes the position that she is not liable to pay for labour beyond 80 hours in any given week. In her written argument, to support this position, Ms Flaska refers to Mr. Grainger’s quote for additional work, attached as exhibit A to his affidavit. That document estimates the labour required to perform the additional scope of work for windows and bathrooms but does not include the labour required to carry out the original scope of work. Furthermore, it is merely an estimate and not a cap or fixed price quote. That document does not limit the number of hours of labour to 80 per week.
[19] Mr. Grainger denies that the contract capped the number of labour hours per week. He testified that in some weeks he provided less than 80 hours of labour and towards the end of the job he provided more labour hours in a week because Ms Flaska was anxious to finish the job before her daughter’s wedding. He brought in additional labourers and his assistant Eugene worked very long hours to complete the work.
[20] Mr. Grainger’s invoices specified the number of hours of labour each week. In week 3 he invoiced for 92.5 hours of labour, in week 4 he invoiced for 82 hours of labour, and in week 6 he invoiced for 94 hours of labour.
[21] Ms Flaska paid these invoices without question or complaint even though the labour hours exceeded 80 in each of those weeks. Based on this evidence as well as my findings regarding the reliability of Ms Flaska’s evidence I prefer the evidence of Mr. Grainger and find that the parties’ agreement did not cap the weekly labour hours at 80.
b. Did Mr. Grainger perform the contract work?
[22] The scope of work initially included repairing walls damaged from a roof leak, removing wallpaper, painting, cleaning stained woodwork and walls, and other minor repairs as instructed by Ms Flaska. The scope of work expanded to include renovating two bathrooms. Ms Flaska identified to Mr. Grainger the work she wanted done and Mr. Granger did it. Some items of disrepair that Mr. Grainger pointed out to Ms Flaska were not repaired because Ms Flaska instructed him not to repair them. In those instances he did not effect the repair. Examples are a loose kitchen counter and a loose pot light fitting. This is significant because in her counterclaim Ms Flaska characterizes these items as deficiencies in Mr. Grainger’s work.
[23] Mr. Grainger completed the work that Ms Flaska instructed him to do and met Ms Flaska at her home on May 2, 2012 for a final inspection. She did not complain about any incomplete or deficient items or about the need for additional post-construction clean-up. After the litigation began she complained about deficiencies but she did not provide Mr. Grainger with an opportunity to return and rectify them.
[24] I find that Mr. Grainger performed the contract and finished the work assigned to him by Ms Flaska. He charged only for the services and materials that he supplied to improve Ms Flaska’s home.
c. What is the value of labour and materials supplied?
[25] Mr. Grainger supplied the services and materials that Ms Flaska requested, thereby performing his obligations pursuant to the contract. Ms Flaska breached the contract by refusing to pay him for the final four weeks of work. On that basis Mr. Grainger is entitled to receive what he contractually agreed to accept for performing the contract.
[26] Ms Flaska claims that Mr. Grainger charged too much for the services and materials he supplied. She relies on the report of Jack Hope, filed as exhibit 7, tab A, to support her position that the value of the work performed by Mr. Grainger is $24,116.46 and not the $62,783.20 that he charged. Having agreed to a time and materials contract, and having found that Mr. Grainger did not breach the contract, the only circumstance in which evidence of value would be relevant is if Mr. Grainger charged for too many hours of labour to perform work that should have been carried out more efficiently. The onus is on Ms Flaska to prove that he charged for too many hours of labour.
[27] Mr. Grainger and Ms Flaska describe the scope of work very differently. Ms Flaska contends that the condition of the premises was not nearly as poor as Mr. Grainger described and that Mr. Grainger took too long to carry out the work. I find that Ms Flaska understated the extent of disrepair and the poor condition of her home prior to the repairs and renovations. She also understated the scope of work required to effect the repairs.
[28] Removing the old wallpaper is an example of the different perspectives of the parties regarding the scope of work. Mr. Grainger explained that removing the wallpaper was difficult and labour intensive. The house was 60 years old and in some places he had to strip four layers of wallpaper where some layers had been covered with layers of paint. He described hours of painstaking labour scraping wallpaper and paint off of walls.
[29] Ms Flaska testified that there was not very much wallpaper in her home and that it only took two days to remove the wallpaper even though Mr. Grainger charged for a week of labour. She claims that Mr. Grainger took too long and charged too much to remove the old wallpaper. Lani Flaska corroborated her mother’s evidence but she contradicted herself. In her affidavit[^3] she deposed at paragraph 3 that she first visited the premises two days after the renovation work commenced and she noticed that all of the wallpaper had been removed. However, she testified at trial that she only attended at the house on Sundays. By Sunday of the first week Mr. Grainger and his assistant Eugene had each devoted five days to removing old wallpaper.
[30] Ms Flaska’s expert, Mr. Hope, based his report entirely on the pre-renovation state of the home as described to him by Astrid Flaska. He valued removing wallpaper as if there had been a single layer of fresh wallpaper on a properly primed wall. He did not take into account that this was a 60 year old home and that the job required removing multiple layers of wallpaper intermixed with layers of paint, all affixed to a plaster wall that had not been primed.
[31] Another example of the parties’ different perspectives on the scope of work arises over the task of cleaning nicotine stained walls and woodwork, including doors and trim. Mr. Grainger described the nicotine staining as “yellow sticky goo” caused by many years of smoking in the house. He explained the labour intensive steps he took to remove decades of cigarette smoke stains and grime from doors, walls and wood trim. Ms Flaska, resident in the house for 26 years, admitted that she smokes in the house and that she instructed Mr. Grainger to clean the doors, walls and wood trim.
[32] Ms Flaska denies the yellow staining. If that is true then she would have raised her concern about how much time Mr. Grainger was taking to clean yellow staining from the doors, walls and wood trim at the time. She never complained about it prior to the litigation.
[33] Ms Flaska’s evidence about the yellow stains is undermined by her expert, Mr. Hope. He did not see the premises before the work was done, but in his opinion the “before” photographs shown to him at trial depict yellow staining on walls and woodwork. He admitted that in valuing Mr. Grainger’s work he did not account for the cost of labour to remove yellow sticky goo from decades of smoking. He attached to his affidavit a separate page containing a printout of a unit price for smoke damage cleaning where smoke is caused by fire. He did not explain this document in his evidence other than it is used in insurance claims. He did not apply it to the facts of this case. I find his unit rate page for smoke damage cleaning unhelpful.
Expert evidence of value
[34] Jack Hope testified as an expert, providing two reports: a report valuing the work performed by Mr. Grainger and a report valuing deficiencies in the work.
[35] Mr. Grainger did not challenge Mr. Hope as an expert qualified to provide opinion evidence to the court on construction costs and values. On that basis the court accepted Mr. Hope as an expert witness. As to his credentials, Mr. Hope acquired his expertise on the job. He is not a quantity surveyor and, according to the curriculum vitae filed, he has taken no formal courses in appraisal, valuation or other subjects relevant to forensically valuing the work in the present case. His experience pertains primarily to providing estimates of construction costs to owners, insurance adjusters and lawyers. He appeared as an expert witness in a reported construction lien reference before Master Polika, where the court found his report less than thorough[^4]. I similarly find that his two reports filed in this reference trial are perfunctory and fail to take into account the pre-renovation condition of the premises and the scope of work that Ms Flaska instructed Mr. Grainger to complete.
[36] I have three significant concerns about the reliability of Mr. Hope’s opinions of value. The first concern is the scope of work that Mr. Hope valued. He did not see the home before Mr. Grainger carried out the work. His report is based entirely on information provided to him by Astrid Flaska as to the pre-renovation condition of the home and the scope of Mr. Grainger’s work. As illustrated in the examples recited, Ms Flaska understated the poor condition of her home when she hired Mr. Grainger. She also understated the scope of work required by the contract. Mr. Hope did not take into account the condition of the home prior to renovation. He admitted that his costing method did not account for the extensive nicotine stain removal required. Nor did he recite in his report his understanding of the scope of work as described to him by Ms Flaska. Ms Flaska is not a unreliable source of information. A report based on her factual account of the scope of work is equally unreliable.
[37] My second concern with Mr. Hope’s two reports is that he did not take into account the age of the home prior to the renovation.
[38] My third and very serious concern with Mr. Hope’s opinion of value is the absence on his part of any understanding of the basis of the unit prices he relies on to support his conclusions of value. The cover page of his reports refers to a price list identified as “ONT07X_JAN12 Restoration/Service/Remodel”. When asked to explain the origin of this costing data and its derivation he could not identify the source other than to say it is a computer program and he receives regular updates. He could not state the basis upon which the costing data is compiled, nor could he speak to whether it is a reasonable comparator for costing prices to renovate an older home in Toronto in 2012. He did not know whether the prices are based on Canadian construction costs. He did not adjust for the age or condition of the home or any other significant elements.
[39] Unlike a quantity surveyor, who would make a professional qualitative analysis when applying costing data to a particular project, Mr. Hope simply multiplied unit rates from his computer data base by the square footage or other measurement of the area renovated (square foot, linear foot, hour of labour or item). I find Mr. Hope’s approach to valuing this project incomplete and unreliable. The unique features of this Bayview Avenue home require an analysis that takes into account the age of the home, the decades of smoking, and the conditions found behind the surfaces as the work progressed.
[40] To illustrate the problem with Mr. Hope’s approach to valuation I return to the example of stripping wallpaper. Mr. Hope quantified this portion of the work on the basis of a single layer of wallpaper applied recently, not decades ago. He did not take into account that the wallpaper had been applied to bare plaster, that it had been painted over and that additional layers of wallpaper had been applied over top, with this process repeated several times over the 60 year life of the home.
[41] I find that Mr. Hope’s valuation of the services and materials supplied by Mr. Grainger is unreliable and unhelpful because it does not value the scope of work performed.
[42] The onus of proving that Mr. Grainger charged for services and materials that he did not supply rests with Ms Flaska. She has not met the onus. Nor has she proven on a quantum meruit basis that Mr. Grainger overcharged for the services and materials he supplied.
[43] I find that the value of services and materials supplied by Mr. Grainger to Ms Flaska, prior to any deductions for deficiencies or incomplete items, is the $62,783.20 invoiced, of which she has paid $32,067.11.
d. Is Ms Flaska entitled to backcharge for deficiencies?
[44] Ms Flaska relies on Mr. Hope’s deficiency report[^5] to identify and quantify deficiencies for which she claims compensation. The Scott Schedule filed by Ms Flasksa, but not filed as an exhibit at trial, lists and quantifies 41 alleged deficiencies ranging in value from $1.98 to $644.22 and adding up to a total of $5,570.34. The items and values are transcribed directly from Mr. Hope’s deficiency report. The Scott Schedule, with the court’s findings for each item, is reproduced in these reasons.
[45] I have the following concerns about the probative value of Mr. Hope’s deficiency report:
a) Mr. Hope based his report on Ms Flaska’s advice to him as to the scope of Mr. Grainger’s work. He did not have an accurate account of the scope of work of the Grainer contract. He includes as deficiencies items that were outside the scope of work. Mr. Grainger is not responsible for deficiencies in items he was not contracted to repair.
b) Mr. Hope valued many minor items as deficiencies but Mr. Grainger was never given an opportunity to return and repair these items, including minor patching and touch up painting. A contractor who has not breached his contract should be given an opportunity to repair deficiencies before the court will require him to pay for another contractor to carry out the repair.
c) Mr. Hope was unclear as to when he attended at the home. He claims that he attended in June 2012 but his photographs are dated March 2013. He claims that he did not take photographs when he attended in June 2012 because his camera was broken and that he did not return right away to take photographs because he was not asked to do so. I find this explanation weak. It is surprising that a professional hired as an expert to testify at trial about deficiencies did not take photographs at the time of his site visit or immediately thereafter, but waited nine months to return.
[46] Regarding Scott Schedule item #8, a switch plate, Mr. Grainger admits the deficiency and accepts Mr. Hope’s value of $9.90.
[47] Regarding Scott Schedule item #15, Ms Flaska claims $644.22 for the cost of a completely new toilet on the basis that Mr. Grainger broke it. Mr. Grainger admits that he broke the lid of the toilet and to rectify the situation he ordered a new lid. It was delivered to Ms Flaska’s home but delivery was not accepted. A party claiming recovery for deficiencies has a duty to mitigate. Accepting delivery of the lid would have been appropriate mitigation. I find that Ms Flaska is only entitled to the cost of replacing the toilet lid. Mr. Grainger provided evidence that the cost of the lid is $175.00. I find that the reasonable value for this deficiency is $175.00.
[48] Regarding Scott Schedule item #16, Mr. Hope characterizes as a deficiency the absence of a mirror in the master ensuite. The contract was for time and materials. Ms Flaska did not instruct Mr. Grainger to install a mirror in the master ensuite, nor did she supply a mirror for Mr. Grainger to install. Consequently, its absence is not a deficiency attributable to Mr. Grainger.
[49] Regarding Scott Schedule item #19, painting trim, Mr. Grainger admits the deficiency and accepts Mr. Hope’s value of $360.00.
[50] Regarding Scott Schedule item #25, painting a door slab, Mr. Grainger admits the deficiency and accepts Mr. Hope’s value of $21.00.
[51] Regarding Scott Schedule item #28, a drywall repair, Mr. Grainger admits the deficiency and accepts Mr. Hope’s value of $56.00.
[52] In the claim for set-off for deficiencies Ms Flaska includes overhead and profit at ten percent each and HST at thirteen percent. I find that these rates for overhead and profit are reasonable. The fact that Mr. Grainger did not add ten percent for overhead and ten percent for profit to his invoices does not preclude including them in the calculation of set-off to repair these items. Similarly, the fact that Mr. Grainger included HST in his labour rates does not preclude adding HST to the amounts set-off to rectify deficiencies. A contractor completing or repairing these items would be entitled to charge for overhead, profit and HST.
[53] Having considered the evidence of the parties regarding the deficiency items listed in Mr. Hope’s report and Mr. Flaska’s Scott Schedule, I set out the court’s findings for each item listed in the Scott Schedule. For minor items of deficiency where small touch ups or adjustments are all that was needed Ms Flaska ought reasonably to have given Mr. Grainger an opportunity to return and rectify the item. By failing to do so she failed to properly mitigate and is not entitled to compensation. In the Scott Schedule I have indicated my finding that Ms Flaska ought reasonably to have allowed Mr. Grainger an opportunity to rectify an item but failed to do so with the abbreviation “NOTR[^6]”.
| Item | Description | Def. Value | Pl. Comments & Value | Court's Findings & Value |
|---|---|---|---|---|
| 1. | Kitchen - Patch small hole at light switch | $55.65 | Completed - $0 | Completed or NOTR - $0 |
| 2. | Kitchen - Outlet or switch cover | $1.98 | Done - $0 | Completed or NOTR - $0 |
| 3. | Kitchen - Paint Wall at repaired switch | $190.00 | Not needed - $0 | Completed or NOTR - $0 |
| 4. | Kitchen - Caulk cabinet joints, wall and ceramic splash | $48.72 | A few joints missed. NOTR - NOTR | $0 |
| 5. | Kitchen - Electrical repair - Refit 1 ceiling trip of pot light | $210.00 | Replaced ceiling trims. Old trims needed replacement. Not in scope. - $0 | Completed or NOTR and outside scope of contract - $0 |
| 6. | Kitchen - Final Cleaning construction residential | $42.32 | Cleaned kitchen at end of job - $0 | Completed or NOTR - $0 |
| 7. | Entry Hall - Drywall patch hole at switch front door | $55.65 | Done - $0 | Completed or NOTR - $0 |
| 8. | Entry Hall - Replace special switch plate | $9.90 | Yes was cracked - $0 | Admitted - $9.90 |
| 9. | Entry Hall - Paint 1 wall at repaired switch | $190.00 | Not necessary - $0 | Completed or NOTR - $0 |
| 10. | Entry Hall - Final Cleaning, construction | $39.44 | Clean when Grainger left - $0 | Completed or NOTR - $0 |
| 11. | Rear center bedroom - Move contents out and reset | $46.91 | Returned to original place - $0 | Completed or NOTR - $0 |
| 12. | Rear center bedroom - Clean paint off glass at window | $32.58 | Grainger left it clean - $0 | Completed or NOTR - $0 |
| 13. | Rear center bedroom - Prepare, paint window frame | $104.98 | Done - $0 | Completed or NOTR - $0 |
| 14. | Rear center bedroom - Final cleaning, construction | $33.72 | Grainger left it clean - $0 | Completed or NOTR - $0 |
| 15. | Master Ensuite - replace R&R Toilet, premium grade; Grainger broke it | $644.22 | Admits broke toilet lid, new lid ordered $175.00; Flaska reused delivery - $175.00 | Graingers efforts to rectify reasonable. Flaska obstructed rectification. - $175.00 |
| 16. | Master Ensuite - Mirror not supplied or installed by Grainger | $130.44 | Flaska instructed Grainger she would purchase mirror herself. - $0 | Not included in Not in scope of work - $0 |
| 17. | Main Bathroom - Finish carpenter –door, sticking | $78.99 | Working when Grainger left - $0 | Completed or NOTR - $0 |
| 18. | Main Bathroom - Paint door slab, door sticking | $41.28 | Completed - $0 | Completed or NOTR - $0 |
| 19. | Main Bathroom - Paint door/window trim and jamb free door frame | $20.69 | Completed - $0 | Completed or NOTR - $0 |
| 20. | Main Bathroom - Ceramic Tile Repairs | $360.00 | One tile raised 1/16” - $360.00 | Admitted - $360.00 |
| 21. | Main Bathroom - Paint touch up; repair wall paint above toilet | $52.49 | Completed - $0 | Completed or NOTR - $0 |
| 22. | Landing / Stairs - Drywall patch, small repair, ready for paint ceiling | $55.65 | Completed - $0 | Completed or NOTR - $0 |
| 23. | Landing / Stairs - Drywall patch, small repair, ready for paint 1 wall | $55.65 | Completed - $0 | Completed or NOTR - $0 |
| 24. | Landing / Stairs - Install Paint the walls and ceiling two coats, labour only | $119.91 | Completed - $0 | Completed or NOTR - $0 |
| 25. | Landing / Stairs - Paint door slab | $20.64 | Admitted - $0 | Admitted - $21.00 |
| 26. | Landing / Stairs - Paint door/wind trim and jamb per side, labour and materials | $20.69 | Completed - $20.00 | Completed or NOTR - $0 |
| 27. | Landing / Stairs - Mask per square foot for drywall or plaster work | $5.44 | Completed - $0 | Completed or NOTR - $0 |
| 28. | Laundry Room - Drywall patch, small repair, Repair wall at pipe | $55.65 | Possible - $0 | Admitted - $56.00 |
| 29. | Laundry Room - Paint walls, ceilings | $241.79 | Not completed, not charged for by Grainger - $0 | Not a deficiency: Grainger did not charge Flaska - $0 |
| 30. | Laundry Room - Clean floor | $25.75 | Not included in scope of work; laundry room not renovated; not charged for by Grainger - $0 | Outside scope of work - $0 |
| 31. | Laundry Room - Mask per square foot for drywall or plaster work | $13.73 | Not included in scope of work; laundry room not renovated; not charged for by Grainger - $0 | Outside scope of work - $0 |
| 32. | Laundry Room - Contents move out then reset | $46.91 | Not included in scope of work; not a deficiency - $0 | Not a deficiency: outside scope of work - $0 |
| 33. | Basement Hall - Drywall patch, small repair, ready for paint Ceiling/wall at pipe repair | $55.65 | Completed - $0 | Completed or NOTR - $0 |
| 34. | Basement Hall - Paint walls and ceiling | $249.27 | Completed - $0 | Completed or NOTR - $0 |
| 35. | Basement Hall - Clean floor | $19.90 | Completed - $0 | Completed or NOTR - $0 |
| 36. | Basement Hall - Mask per square foot for drywall or plaster work | $10.61 | Completed - $0 | Completed or NOTR - $0 |
| 37. | Basement Bathroom - Drywall patch, small repair, repair wall at pipe | $222.60 | Not included in scope of work; not a deficiency - $0 | Outside scope of work - $0 |
| 38. | Basement Bathroom - Paint the walls and ceilings – two coats | $376.00 | Not included in scope of work; not a deficiency - $0 | Outside scope of work - $0 |
| 39. | Basement Bathroom - Clean floor | $49.05 | Not included in scope of work; not a deficiency - $0 | Outside scope of work - $0 |
| 40. | Basement Bathroom - Mask per square foot for drywall or plaster work | $26.16 | Not included in scope of work; not a deficiency - $0 | Outside scope of work - $0 |
| 41. | Basement Bathroom - Contents – move out then reset | $46.91 | Not included in scope of work; not a deficiency - $0 | Outside scope of work - $0 |
| 42. | Total allowed: | $621.90 | ||
| 43. | 10% Overhead, 10% Profit & %13 Tax | $1462.42 | $0 | Overhead: $62.19, Profit: $62.19, Subtotal: 746.28, HST: $97.02 |
| TOTALS: | $5570.34 | $843.30 |
[54] I find that Ms Flaska is entitled to set off $843.30 for deficiencies from the amount otherwise found payable to Mr. Grainger.
e. Ms Flaska’s counterclaim for accommodation costs, cleaning costs and amounts paid to Mr. Grainger
Accommodation costs
[55] Ms Flaska claims $15,125.00 for accommodation costs, relying on four invoices from Minto Suites[^7] in Yorkville and a charge account statement[^8], for the periods of time and in the amounts listed as follows:
February 7, 2012 to March 7, 2012: $ 3,750.00
March 8, 2012 to April 6, 2012: $ 3,750.00
April 7, 2012 to April 20, 2012: $ 1,750.00
April 21, 2012 to May 20, 2012: $ 3,750.00
May 14, 2012 to 16, 2012 (2 nights) $ 2,125.00
$15,125.00
[56] Mr. Grainger testified that he explained to Ms Flaska that she could live in the house during the renovation and he would schedule the renovation to accommodate her residing in the house throughout, including completing the master bedroom and ensuite first. He testified that he told her that she could move out if she chose to do so. His evidence is that he never agreed to pay for her expenses to live elsewhere during the renovation and it was the type of renovation that did not require the house to be vacated. There was running water and electrical service at all times while the work was underway.
[57] Ms Flaska testified that it was too dirty and dusty for her to live in her home while Mr Grainger was working and she decided to move off site.
[58] I find that the parties did not contract for Mr Grainger to pay Ms Flaska’s accommodation expenses to live off site during the repairs and renovations. Ms Flaska chose to do so even though she could have lived in the home throughout, albeit with some disruption and discomfort. Ms Flaska’s claim for accommodation costs fails.
Cleaning costs
[59] Ms Flaska counterclaims for $3,729.00 for the cleaning costs she paid to Maret’s Quality Home Cleaning Ltd., relying on the invoice of May 16, 2012[^9]. The invoice provides details of the cleaning services and includes vacuuming curtains, sheers and couches, cleaning chandeliers, cleaning inside cabinets, cupboards and drawers and cleaning the basement.
[60] Mr. Grainger testified that he and his labourers carried out a final cleaning and that Ms Flaska made no complaints to him about it at the time of their final inspection. Nor did she provide him an opportunity to return and conduct a better cleaning. His position is that he would have carried out additional cleaning if requested.
[61] I find that Ms Flaska seeks compensation for cleaning beyond what is normally expected in a home renovation. Cleaning drapes, sheers, couches and the insides of cabinets is not reasonably included in a post renovation cleaning. Ms Flaska chose to leave these items in the house and Mr. Grainger is not responsible for cleaning them.
[62] Cleaning floors, walls and windows is reasonably expected of a contractor at the end of a renovation. A contractor is entitled to be provided an opportunity to return and address concerns before a homeowner hires another contractor to do the work. Ms Flaska did not provide Mr. Grainger with such an opportunity. Nor did Ms Flaska obtain more than one quote for the work. There is no evidence to prove that the cost Ms Flaska incurred for cleaning is reasonable and fair market value.
[63] However, recognizing that Mr. Grainger did not incur the labour costs of returning and carrying out a more thorough cleaning and that the home required further cleaning, I will allow Ms Flaska a portion of her cleaning costs. To calculate the reasonable cost of cleaning taking into account these factors, I reduce the cleaning invoice of Martel by half to $1,864.50 to reflect that it includes many items outside the scope of what a contractor is reasonably responsible to clean. I reduce it by a further 30 percent to $1,305.00 to reflect that Ms Flaska failed to provide evidence that she selected a reasonably priced cleaning contractor.
[64] Ms Flaska is entitled to $1,305.00 for cleaning, payable by Mr. Grainger by way of set-off.
Claim for refund of all payments to Mr. Grainger
[65] Ms Flaska paid Mr. Grainger $32,067.11 for work performed and invoiced for the first seven of eleven weeks of work. She asks the court to order a refund of the entire amount paid even though her own expert values the work at $24,116.46. Based on her own expert’s report (assuming the court finds that the values that Mr. Hope attached to the work accurately reflect the value of the work, which is not the case) the most that she would be entitled to would be $7,950.65.
[66] Nevertheless, Ms Flaska asks the court to order Mr. Grainger to refund $32,067.11 recognizing that she has received the benefit of the repairs and improvements. By overreaching and asking the court to order a full refund of all the monies paid Ms Flaska undermines the credibility of her defence to Mr. Grainger’s claim and her own counterclaim. Her position is so patently unreasonable as to discredit the sincerity of her claim.
f. Does breach of consumer protection legislation preclude Mr. Grainger from getting paid for his work?
[67] The contract required weekly payments. For the first seven weeks Mr. Grainger issued weekly invoices and Ms Flaska paid them as they were issued. Then, beginning in week eight, Ms Flaska came up with excuses not to pay the weekly amounts. She asked Mr. Grainger to wait until the end of the job for payment of the last four weeks of work. The job was close to completion and he agreed. He continued to issue weekly invoices but Ms Flaska did not pay them.
[68] Ms Flaska deferred payment in this manner with the deliberate intention of inducing Mr. Grainger to complete the work knowing full well that she had no intention of paying him, a fact that she admitted at trial. She had come into possession of a Lang Michener Commercial Litigation Brief issued in the fall of 2010 about the Consumer Protection Act. Based on what she read she decided that she did not have to pay Mr. Grainger because he had not provided her with a written contract. She relies on the Consumer Protection Act as authority that she is entitled to the benefit of Mr. Grainger’s work for free. She deceived Mr. Grainger by promising payment even though she had no intention of paying him and every intention of filing a complaint with the Ministry of Consumer and Business Services seeking a refund of all the money she paid him.
[69] When Mr. Grainger attended at Ms Flaska’s home on May 2, 2012 for the final inspection and payment Ms Flaska thrust a package of documents at him made up of a letter explaining that she was not going to pay him, copies of the Lang Michener newsletter, the Consumer Protection Act, the Construction Lien Act, and several invoices for accommodation, paint, tiles and plumbing fixtures. In her letter she threatened prosecution under the Consumer Protection Act and pointed out that conviction carries fines of up to $250,000.00. She filed a complaint but the Ministry did not proceed or prosecute. She wrote in her letter to Mr. Grainger:
“I have the right to cancel any agreement that does not meet the provisions of the CPA at any time within one year of entering into the agreement. In these circumstances, the default position is that no payment needs to be made under the contract.”
[70] Ms Flaska wrote to Mr. Grainger attempting to cancel the contract after the fact. Her position is that Mr. Grainger’s failure to provide a written contract renders the contract between them illegal and unenforceable. She argues in the alternative that she cannot be required to pay more than 10 percent over the contract price and asserts that the contract price is the estimate filed as exhibit D to Mr. Grainger’s affidavit, which refers to eight weeks of labour at $4,000.00 per week for a total of $32,000.00 for labour.
[71] The first flaw in Ms Flaska’s position is that the “estimate” she relies on is not an estimate for the contractual scope of work that the parties had agreed upon. It does not include stripping wallpaper and cleaning walls and trim or repairing plaster and other damage caused by the roof leak that another contractor had repaired, for which Ms Flaska had hired Mr. Grainger initially. The document is not an estimate for the entire job. It is a quote for additional work to change windows and renovate bathrooms, a quote that Ms. Flaska requested after the initial work had commenced. She authorized Mr. Grainger to carry out some of the additional work (renovate bathrooms) but did not authorize the window replacement.
[72] The second flaw in Ms Flaska’s position is that the Consumer Protection Act caps the maximum amount she is required to pay at ten percent over the contract price is that there is no fixed contract price. The contract between the parties was based on time and materials.
[73] The third and most significant flaw in Ms Flaska’s position is that it would be inequitable in the circumstances for the court to relieve Ms Flaska of her contractual obligation to pay Mr. Grainger for supplying services and materials to improve her home.
[74] The purpose of the Consumer Protection Act, 2002 is to protect innocent consumers from unscrupulous vendors of services and materials. A homeowner who, in the heat of the moment, buys goods and services from a door-to-door salesman needs legislative protection. A homeowner such as Ms. Flaska who approaches a contractor, who agrees to pay for his labour and materials and who negotiates the contractor’s hourly labour rate down from $75.00 to $50.00, is not in need of such protection. It is quite the reverse in this case. Hard working contractors like Mr. Grainger are in need of protection from homeowners like Ms Flaska who try to use the courts to take advantage of workers.
[75] Technically, the Consumer Protection Act applies to this contract. Ms Flaska is a consumer. Section 22 requires a consumer contract to be in writing. Section 93(1) provides that a consumer contract that is not in writing is not binding on the consumer. A consumer may demand a refund from a supplier who has been paid in contravention of the Act: section 98(1).
[76] However, not every non-compliant consumer contract is unenforceable against the consumer. Where it would be inequitable not to enforce the contract the court may hold the consumer bound by her contractual obligation. Section 93(2) provides:
s.93(2) …a court may order that a consumer is bound by all or a portion or portions of a consumer agreement, even if the agreement has not been made in accordance with this Act or the regulations, if the court determines that it would be inequitable in the circumstances for the consumer not to be bound.”
[77] Justice Conlan considered a similar issue in Connect Electric Inc. v Pullen[^10]. He wrote that in deciding whether to apply section 93(2) of the Act a court ought to consider the serious consequences of invalidating the contract, the social utility of those consequences and the class of persons for whom the prohibition was enacted, citing Morrell v Cserzy[^11].
[78] Other considerations, according to Justice Conlan, include whether the contract was bargained for at arm’s length, whether the consumer was unfairly taken advantage of, whether the agreement was wholly or substantially completed, the degree of benefit derived by the consumer and whether it would be inherently wrong or contrary to public policy to enforce the contract: Morrell, supra, at page 14, citing Johnson v Lazzarino[^12] and Agasi v Wai[^13].
[79] I make the following findings regarding these relevant factors:
a) Consequences of invalidating the contract: Were the court to find that the contract is invalid the consequences would be serious, not only to Mr. Grainger but to all unsuspecting contractors, particularly those running small businesses.
b) The protected class of persons: The Consumer Protection Act is designed to protect consumers from unscrupulous service providers who try to take advantage of them by imposing upon them obligations for payment that are unclear for services or materials that are not clearly defined. Ms Flaska and Mr. Grainger do not fit that picture. The parties agreed to a time and materials contract. They agreed on an hourly rate of $50.00, after Ms Flaska negotiated the rate down from $75.00. In fact, Ms Flaska’s expert witness, Mr. Hope, applied an hourly rate of $74.88 in his report, corroborating that Ms Flaska negotiated a rate far below market value. This suggests that Ms Flaska is not an unsophisticated or naïve consumer.
c) Whether the contract was negotiated at arm’s length: Ms Flaska deposes in her affidavit evidence in chief[^14] that a woman she met in Home Depot gave her the contact information for Mr. Grainger. Ms Flaska and Mr. Grainger are at arm’s length.
d) Whether Mr. Grainger took unfair advantage of Ms Flaska: Mr. Grainger did not take advantage of Ms Flaska in negotiating the terms of the contract. They agreed to a time and materials contract and she negotiated an hourly rate that is below market value, with materials at cost. The terms of the contract favour Ms Flaska over Mr. Grainger and, other than the low hourly rate and agreement that materials would not enjoy a markup, the contract is typical of a time and materials contract. I find that Mr. Grainger did not take advantage of Ms Flaska in negotiating the terms of the contract.
Nor did Mr. Grainger take advantage of Ms Flaska in carrying out the contract. She complains that he spent too many hours carrying out the work but provided no reliable evidence upon which to make such a finding.
e) Whether the contract was wholly or substantially completed: Mr. Grainger completed all of the contract work and attended to conduct the final inspection with Ms Flask. She did not specify any deficiencies at that time or at any time prior to the litigation. Nor did she provide Mr. Grainger an opportunity to repair minor deficiencies that she discovered later.
f) Degree of benefit derived by the consumer: The renovation was completed in time for Ms Flaska’s daughter’s summer wedding. Ms Flaska continues to enjoy all of the benefit of Mr. Grainger’s work. From the photographs filed in evidence she has a beautiful home. There are no glaring deficiencies. The work was carried out professionally.
g) Public policy: It would not be contrary to public policy to enforce the contract. Ms Flaska is a sophisticated homeowner trying to take advantage of a hard working construction contractor on a technical reading of consumer protection legislation.
[80] For all of these reasons I find that it would be inequitable if the court were to relieve Ms Flaska of her contractual obligation to pay Mr. Grainger because the contract is not in writing. It is beyond doubt that both parties knew and understood the terms of the contract. Ms Flaska monitored the progress of the work weekly, attending at the site three times a week and receiving invoices weekly setting out the labour hours and cost of materials. Had she been concerned about the scope of work or the number of hours of labour she would have raised her concerns as an issue at the time. She did not.
[81] Instead, from weeks eight through eleven, she waited in the weeds for Mr. Grainger to complete the job, with no intention of paying him, and then pounced with her package of legal information. She took advantage of Mr. Grainger. I find her conduct reprehensible.
[82] For all of these reasons I find that the contract is not rendered unenforceable by reason of the Consumer Protection Act.
g. Accounting
[83] Ms Flaska argues that Mr. Grainger falsely states that he paid for materials that he did not pay for, referring to a summary of invoices for materials filed as an exhibit to his reply affidavit (exhibit 4, tab D). At trial Mr. Grainger explained that this document, titled “Invoices Paid for by Grainger”, was prepared by his lawyer and lists all of the materials supplied, including those that Ms Flaska paid for. He admitted that this exhibit contains errors and testified that he only charged Ms Flaska for the materials listed in his eleven invoices to her. Having cross-referenced the list of invoices filed as exhibit 4, tab D with Mr. Grainger’s eleven invoices to Ms Flaska I find that Mr. Grainger only charged Ms Flaska for materials that he paid for and substantiated with receipts.
[84] Mr. Grainger issued eleven invoices and received payment for the first seven, as follows:
| Invoice # | Date 2012 | Period of work | Total Amount invoiced | Total amount paid |
|---|---|---|---|---|
| 1 | Feb 13 | Feb 13-17 | $4,245.00 | $4,245.00 |
| 2 | Feb 20 | Feb 20-24 | $5,346.60 | $5,346.60 |
| 3 | March 2 | Feb 27-Mar 1 | $5,069.34 | $5,069.34 |
| 4 | March 9 | March 5-9 | $4,674.28 | $4,674.28 |
| 5 | March 16 | March 12-16 | $4,435.34 | $4,435.34 |
| 6 | March 23 | March 18-23 | $5,430.15 | $5,430.15 |
| 7 | March 30 | March 26-30 | $2,866.40 | $2,866.40 |
| 8 revised | April 2-6 | $6.367.06 | 0.00 | |
| 9 | April 13 | April 9-13 | $6,467.72 | 0.00 |
| 10 | April 20 | Apr 15-21 | $5,849.88 | 0.00 |
| 11 | April 27 | Apr 22-28 | $12,031.43 | 0.00 |
| Total: | $62,783.20 | $32,067.11 |
[85] The balance owing based on the amounts invoiced and the amounts paid is $30,716.09.
[86] Ms Flaska is entitled to $1,305.00 for cleaning, payable by way of set-off. She is also entitled to $843.30 for deficiencies by way of set-off.
[87] After setting off these amounts I find that Astrid Flaska must pay Stephen Grainger $28,567.79.
V. Conclusion
[88] THIS COURT finds that Astrid Flaska must pay Stephen Grainger $28,567.79 as the balance owing on the contract after setting off $1,305.00 for cleaning and $843.30 for deficiencies.
[89] THIS COURT further finds that Astrid Flaska must pay Stephen Grainger pre-judgment interest on $28,567.79 from May 24, 2012, the date the construction lien was registered, to the date the court’s report is issued, at the Courts of Justice Act prejudgment interest rate of 1.3 percent.
[90] THIS COURT further finds that Astrid Flaska must pay Stephen Grainger post-judgment interest on $28,567.79 at the Courts of Justice Act post judgment interest rate from the date of the report to the date of payment.
[91] THIS COURT further finds that if Astrid Flaska defaults in payment her interest in the premises may be sold under the supervision of this court and the purchase money be paid into court to the credit of this action to be dispersed as ordered by the court.
[92] THIS COURT DIRECTS THE PARTIES to attend before the court on August 14, 2013 at 10:00am at 6th floor, 393 University Avenue, Toronto to make submissions on costs and to finalize the reference report. If a party fails to attend without having been excused from attendance the court will proceed in their absence to fix costs and settle the final report.
Released: August 8, 2013
CITATION: Grainger v. Flaska, 2013 ONSC 4863
COURT FILE NO.: CV-12-455097
DATE: August 8, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephen L. Grainger
Plaintiff (defendant by counterclaim)
- and -
Astrid Flaska
Defendant (plaintiff by counterclaim)
REASONS FOR JUDGMENT
Master C. Albert
Released: August 8, 2013
[^1]: Instrument AT3025128 registered against LT 5 PL 3031 North York, Toronto (PIN 10126-0248 LT) [^2]: On day 2 of the trial Ms Astrid Flaska did not appear. Her daughter, Lani Flaska, attended and delivered a message from her mother to the court asking the court to proceed with argument without her. In the circumstances the court heard oral argument from the plaintiff with Lani Laska present to take notes and a court reporter recording the argument. The court allowed Astrid Laska one week to file written argument, which she did. [^3]: Exhibit 6 [^4]: Wo-Built inc. v Sangster [2011] O.J. No. 2781; 2011 ONSC 3121; 4 C.L.R. (4th) 250; 2011 CarswellOnt 4885 at paragraphs 52 [^5]: Exhibit 7, tab B [^6]: NOTR is an abbreviation for “no opportunity to rectify” [^7]: Exhibit 2, tab 6 [^8]: Exhibit 2, tab 10 [^9]: Exhibit 2, tab 8 [^10]: Connect Electric Inc. v Pullen 2013 ONSC 1837, [2013] O.J. No.1464; 2013 ONSC 1837 at para. 57 [^11]: Morrell v Cserzy, 2002 CarswellOnt 658 at page 11, citing Royal Bank of Canada v Grobman et al (1977), 1977 1113 (ON SC), 18 O.R. (2d) 636 at pages 652-653 [^12]: Johnson v Lazzarino (1998), 1998 14835 (ON SC), 39 O.R. (3d) 724 at page 728. [^13]: Agasi v Wai 2000 CarswellOnt 2903 (Ont. S.C.,) at paras. 46 and 47 [^14]: Exhibit 5, paragraph 4