COURT FILE NO.: CV-08-986

DATE: 2013/07/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GASTON GRONDIN MASONRY LTD.

Plaintiff

– and –

NATALIE POITRAS AND SHAWN POITRAS

Defendants

Stephane Bond, counsel for the Plaintiff

Andrew McKenna and Sophia Zahariadakis, counsel for the Defendants

HEARD: Oct. 15, 16, 17, 18, 19, 22, 23, 24, 25 and 26, 2012, Jan. 7, 8, 9, 10, 18 and 23, 2013

REASONS FOR JUDGMENT

PELLETIER, J.

INTRODUCTION

[1] Gaston Grondin Masonry Ltd. brings this action in breach of contract seeking to recover $45,415.00 for unpaid masonry services. Natalie and Shawn Poitras dispute the claim and seek an award of $298,500.00 plus applicable taxes in order to correct defects in the plaintiff’s work. The action revolves around the masonry work performed by the plaintiff on the defendants’ newly constructed home in the fall of 2007 and the winter of 2008.

[2] The first step in deciding the merits of the respective claims in breach of contract is to determine the terms and conditions to the contract. It is the contract between the parties that will determine if the respective obligations were met.

[3] The contract must be determined on the basis of what was mutually agreed upon, not what was discussed, negotiated or hoped for. The parties are bound by what they bargained for and agreed upon – if indeed they did. The principle is stated in Waddams’ The Law of Contract as follows:

“The objective principle of contract law requires not just inward concurrence of intention for the formation of a contract, but an outward manifestation of assent by each party as to induce a reasonable expectation in the other.”

[4] The questions then remains, what did the parties bargain for? What were the terms of the contract? Were those conditions met and, if not, what was the cause?

THE CONTRACT

[5] Verbal contracts for the performance of a service are binding and enforceable. Though convenient, they are risky. With the passage of time, a change in perspective and through the lens of bias created by conflict and litigation, the terms of the verbal contract can easily become blurred and confused. In the present case, the parties disagree not only on whether the terms of the contract were fulfilled but indeed what the terms were.

[6] By their own evidence, the parties establish that the agreement which provided that Mr. Grondin would install a stone veneer exterior, chimneys and fireplaces to the Poitras’ home would be a self-defining process.

[7] Mr. Poitras had observed work being performed by Mr. Grondin on a nearby house and decided to inquire into his availability to perform masonry work on his new home. Mr. Poitras had began construction in the spring of 2007 and expected to be in a position to have the masonry work done in the fall or early winter.

[8] The two men met at the construction site, discussed the project and later that day discussed the construction of a large fireplace.

[9] There is complete disagreement as to the terms of the contract reached that day. Without the benefit of a written agreement, and given the magnitude of the project and the various contingencies, this is not surprising.

[10] Mr. Grondin claims that the agreement provided for the payment of $7.00 per square foot of stone installation with all related materials and supplies furnished by the Poitras. The Poitras state that a price of $30,000.00 for the installation of 4,000 square feet of stone veneer and two fireplaces and chimneys with 4 flues was agreed upon. The Court is unable to conclude that either interpretation of the agreement arrived at by the parties is accurate.

[11] At the very most, what can be said is that Mr. and Mrs. Poitras agreed to pay Mr. Grondin to do masonry work on their new home.

[12] The difficulty begins with the lack of any written agreement.

[13] It is difficult to understand how Mr. Grondin, an experienced mason and businessman, would permit a job of this size to be undertaken and performed without anything other than a handshake.

[14] Similarly, the Poitras were certainly remiss in agreeing to the execution of work representing both important aesthetic and structural qualities to a very impressive structure without a word in writing.

[15] The reason is patently obvious and in fact not denied by Mr. Poitras. This was a cash deal. Both parties were complicit in an arrangement that would save them money by evading provincial sales tax, federal goods and services tax and income tax. Mr. Grondin’s feeble and unconvincing attempt during his testimony on the counterclaim to suggest that cash and some other form of payment was expected in no way detracts from the obvious reason that the parties were willing to leave a great deal to chance by making this a cash deal with no written contract. Similarly, Mr. Poitras’ attempt to attribute the cash deal to Mr. Grondin’s urgings overlooks the fact that without exception, every one of the Poitras’ tradesmen worked for cash and without contracts. Though not raised by counsel, there is a public policy dimension to this issue that the Court must address. The agreement, whatever it was, that the parties arrived at benefitted both by avoiding the tax consequences which attach to any commercial transaction. It was a deliberate deprivation of a fiscal regime that exists to fund public works and services, including the costs associated with the administration of justice.

[16] While it would be naive and unrealistic for the Court to conclude that every contract entered into “under the table” should be excused from enforceability, the Court must nonetheless determine whether it should countenance an agreement that has, as one of its main features – perhaps the only one completely agreed to by both parties – a price that excludes goods and services tax for one and declarable income for the other.

Cerilli v. Klodt et al. (1984) 48 O.R. (2d) (H.C.J.), Menard et al v. Genereux et al (1983) 1982 2076 (ON SC), 39 O.R. (2d) 55.

[17] I have concluded that as the principal object of the mutual undertakings by both parties was the payment of money for the performance of masonry work, and that the oblique objective behind the cash payment/no written contract was secondary, and frankly, not uncommon, the contract is still enforceable and the failure to fulfill its terms still actionable. Authority for this proposition can be found in Berne Development Ltd. v. Haviland et al. (1983) 1983 1955 (ON SC), 40 O.R. (2d) 238 (H.C.J.) at p. 250:

“In recent years, there has been a recognition of the desirability balancing the need to preserve public policy by not enforcing illegal agreements and the need to avoid unjust enrichment. (See Waddams, The Law of Contracts (1977) at 356-58, quoted by Krever J. in Menard and McCamus, Restitutionary Remedies, Law Society of Upper Canada Special Lectures (1975) at 276-84.) In the Law Society lecture, Professor McCamus refers to a statement by Mr. Justice Masten in Steinberg v. Cohen, 1929 419 (ON CA), 64 O.L.R. 545, [1930] 2 D.L.R. 916 at 928 where he said:

It is possible that each case should depend upon its own facts, and upon a balancing by the Court of the public interest on the one hand and of the private injustice on the other.

The striking of the balance may depend in each case on the extent of the illegality and the unjust enrichment.”

[18] Further authority for this proposition is found in Sidmay Ltd. et al v. Wehttam Investments Ltd., 1967 24 (Ont.C.A.). That said, this obvious feature to the deal struck between Mr. Grondin and the Poitras causes the Court to view their evidence and their respective positions with great caution. Their respective credibility cannot but suffer given a deliberate and wilful effort at gaining financial benefit at the expense of the public purse.

[19] As to the agreement arrived at between the parties, it lacked specificity on a number of important features of the work that was to be performed.

[20] The parties had not agreed to the completion date, a common term in any standard form contract. Had Mr. Poitras been as concerned as he claims about the impending winter, the issue would have been more formally addressed. Indeed, the evidence of Frank Joyal, a witness called by the Poitras, establishes that at the original meeting to discuss the work, Mr. Poitras raised the issue of heated cover being provided if the weather required it. Mr. Poitras cannot now genuinely claim to have expected a project of this magnitude to be complete before the holidays with a mid fall start state.

[21] The evidence of experts called by the Poitras including Mr. Danis, makes it patently obvious that the installation of over 5,000 square feet of stone veneer, in varying sizes, on elevations of over 20 feet and the construction of an enormous fireplace and two chimneys each with two flues, protruding some 10 or more feet above the roof line could hardly be achieved in a matter of some 6 or 7 weeks.

[22] Mr. Poitras bargained for and received an end-of-season service with the attendant risks associated with winter construction. How those risks would be managed and at whose expense is conspicuously lacking from the agreement struck between the parties.

[23] Similarly, the start date was not established. As was chronic throughout the proceedings, the parties pointed at each other in terms of the delays in starting the work. I am prepared to accept that Mr. Grondin stated at the initial meeting that he would start work at the Poitras’ residence once his other commitments were fulfilled. Nothing else was ever specified. Five years later, given the acrimony that has developed between the parties, and, at the risk of belabouring the point, without the benefit of any written confirmation or exchange of correspondence, it becomes a matter of speculation as to when the work was to begin in earnest. That the site was not ready for the masonry work upon Mr. Grondin and his team’s arrival, due to uninstalled windows and missing moisture barriers, only exacerbates the challenge of determining the important issue of when the work was to begin, and dismisses Mr. Poitras’ claim that he thought the agreement called for an earlier start and end date than was achieved.

[24] The original agreement also lacked in specificity as to the supply of mortar, sand, and water. Mr. Poitras claims the quote by Mr. Grondin was an all inclusive price. Mr. Grondin states that his price was for the installation of stone only, and at a later point, the shared cost of heating the masonry work during the colder months. The parties improvised. Sand supplied by Mr. Poitras, said to contain some contaminants, would be, according to Mr. Poitras taken into consideration in some future accounting. Similarly, the water supply coming from a neighbour’s well through a garden hose was interrupted due to freezing on more than one occasion. Mr. Poitras does not specifically deny that water from ditches or wheel ruts on the property was used in what has been described as the delicate and precise preparation of mortar. Mr. Poitras may claim that Mr. Grondin ought to have known better and should be accountable. Mr. Grondin may respond that he was not responsible for the supply of the sand and water and did as he was told. In the end, it is the failure of the parties to foresee and adequately provide for the assignment of responsibilities that renders both parties responsible for the outcome.

[25] The agreement also failed to provide for a payment schedule and any holdback provision. Typically, these terms are decided upon in order to ensure that only work performed is paid for at various intervals while allowing the tradesman to meet his operating costs, subject to a final holdback once the work is deemed satisfactory, either through the inspection process or some other quality and safety control measure. In this case, a payment schedule was never discussed. Two random payments of $10,000.00 were made in cash without receipts provided, although the payment of those amounts is not in dispute. It is only upon Mr. Grondin’s request for the balance that the relationship broke down.

[26] The exact work to be performed was never agreed upon. Indeed, the original quote of either $5.00 or $7.00 per square foot was based on some 4,000 square feet of stone expected to be installed.

[27] That this estimate would be 25% short of the actual amount of stone installed demonstrates the extent to which this was a wait-and-see arrangement. The exact amount of stone installed in fact was only revealed during the trial.

[28] The construction of a rather remarkably large fireplace was completed from a photograph. The original plans for the house only provided for a single chimney. The basement masonry consisting of arches and a bar built from recycled bricks was based on verbal instruction as the project progressed. While Mr. Grondin agreed that the lack of plans did not impede his work, the failure of the parties to agree at the outset as to the amount of work to be done, the timing, the assignment of responsibilities, and a payment schedule renders difficult to reconcile the parties’ present testimony on how those issues were decided.

[29] Mr. Poitras, according to his own evidence, performed a very large part of the work on this house including the installation of a septic system, the framing, installation of doors and windows and the erection of the trusses; no small task if one examines the size of this house and the very intricate roof lines.

[30] The rest of the work – plumbing, electricity, insulation and other features, was performed, often after hours or on weekends, for cash by persons with whom Mr. Poitras was familiar.

[31] It is significant that Mr. Poitras and Mr. Grondin had never met before this house was built. They had no prior working relationship. Mr. Poitras does not speak French. Mr. Grondin speaks very little English. Despite this, each purports at this juncture to have arrived at a specific and detailed arrangement in relation to the work to be performed by Mr. Grondin.

[32] It is impossible to say they did. The agreement they struck is one which the Court must at this point decide for them, based on reason, common sense, and the realistic expectations of both parties. As stated earlier, the most that can be said with any degree of certainty is that Mr. Poitras agreed to pay cash to Mr. Grondin for him to perform some masonry work at his home. To conclude otherwise would be speculative and imprudent. This conclusion is a direct function of how the parties chose to approach this project.

THE CREDIBILITY OF THE WITNESSES

[33] In assessing credibility, the Court begins with the premise that a witness’ evidence is never perfect. The passage of time, advertant or inadvertent contamination of a witness’ evidence through discussions with other witnesses or exposure to evidence, natural biases and different perspectives as well as other factors inevitably combine to affect both the credibility and reliability of even the sincere witness. Corroboration, where it exists, and whether a witness’ testimony withstands the scrutiny of reason and common sense are among the means available to the Court in determining how much or how little of a witness’ evidence to accept. In this regard, the submissions of both counsel have merit in terms of the credibility of the opposing party. I accept counsel for the defendants’ submissions that Mr. Grondin was prone to embellishing and indeed on occasion fabricating evidence in order to rebut evidence harmful to his case. A particularly flagrant example manifested itself with regards to the construction of the chimneys beyond the roof line. Similarly, Mr. Poitras’ obstinate refusal to concede any point that tended to establish that he was the builder/contractor on this project leads the Court to conclude that he will easily measure his evidence to suit his purpose. The exchange between counsel for Mr. Grondin and Mr. Poitras early in his cross-examination over the first 30 pages of his testimony on October 25, 2012 has to be read in its entirety in order to appreciate the lengths that Mr. Poitras would go to in order to avoid the suggestion that he is an experienced builder and by any standard, the contractor for this project. I would also conclude that Mrs. Poitras’ denials of her husband’s building experience and role in the construction of their home requires that her evidence be viewed cautiously.

[34] The relative unreliability of the main witnesses’ testimony does not render the task of determining the terms and conditions of the contract any easier. Nor is the task facilitated by the only three documents relating to the contract that were created, mid-project, prior to the commencement of these proceedings.

[35] Exhibit 1, tab 12 is a two-page handwritten note with portions completed by Mrs. Poitras and portions written by Mr. Grondin. The original was inadvertently misplaced by prior counsel for the Poitras. The document is dated February 4, 2008 and purports to be a receipt for the $20,000.00 cash paid to that point. It also is said to be a written assurance by Mr. Grondin that the chimneys were at that point safe and operational. These inscriptions together with Mr. Grondin’s signature appear on the back of what was described by Mrs. Poitras as an envelope to a greeting card. On the cover is exclusively the writing of Mrs. Poitras with no signatures or acknowledgements. It sets out “For outside stone (up to 4,000 square feet) - $20,000”. The figure “4000” is changed from “4400” and bears Mrs. Poitras’ initials. The document further provides “2 fireplaces and chimneys - $10,000”. The word “chimneys” is crossed out. Mrs. Poitras gave evidence that the word “chimneys” was added after the line that runs through it. The document finally provides “heat for masonry work - $2,000”. The appearance of a line from the end of this written portion to the amount tends to show that the line was drawn to show that the written portion related to the particular amount in the right margin. If so, it would render possible the explanation that the line had been drawn after the references to the fireplaces and that the word “chimneys” was added thereafter. None of the changes are initialled by Mr. Grondin.

[36] There are many issues that arise from this document. Firstly, the front of the document is not signed by Mr. Grondin and the back is not signed by either of the Poitras. The timing of the various changes is difficult to determine. The document is silent as to extra costs such as modifications made to the plans in the basement, and the compensation for sand purchased, purportedly by Mr. Poitras, which he stated would be accounted for by way of credit to the contract price.

[37] In short, the document does not support, in any compelling way, the position taken by the Poitras. The same can be said for the document at exhibit 1, tab 1. This undated document appears to be an attempt by the parties to figure out the terms of their agreement several months after the work began. It is described as a document prepared largely by Mr. Grondin as Mr. Poitras dictated items and amounts which Mr. Grondin transcribed. It is not signed and resulted in a confrontation that saw Mr. Grondin demand that he be paid, which was denied and prompted Mr. Grondin to crumble and discard the document prior to leaving the site with a certain quantity of sand. Clearly had the original agreement been as reflected in this document, Mr. Grondin would have been invited to complete the work and correct it where necessary and he would have been paid the balance, some $15,700.00 Instead, Mr. Grondin left claiming that the Poitras owed him another $30,000.00, having demanded half before he left.

[38] Finally, the plaintiff’s invoice dated May 5^th, 2008 in the amount of $64,415.00 at exhibit 1, tab 16, is of no assistance in determining the details of the agreement reached between the parties at the outset. It includes 5,000 square feet of stone installed, close to the actual amount determined years later but not known to Mr. Grondin at the time, costs for cutting stones, costs for installing moisture barrier, installation of tarps and, most surprisingly, goods and services tax, implicitly excluded from the original bargain. The invoice is silent as to any amount already paid. Quite apart from not representing what was initially agreed upon, this document, prepared after litigation was threatened, demonstrates the revisionist approach used by both parties in attempting to identify the terms of the original agreement.

[39] I hasten to add that the Court recognizes that building contracts will invariably be modified and sometimes departed from as projects progress. A change in the homeowners’ plans or finances, unforeseen delays and a variety of other causes can result in modifications to a building contract entered into in good faith. The problem presently is that the very basic terms of this agreement, negotiated between strangers speaking two different languages without a word committed to writing from the outset, do not appear to have been the subject of a meeting of the minds. The Court is left then with attempting to achieve some sense of fairness based on what the parties’ reasonable expectations could have been.

REASONABLE EXPECTATIONS

[40] Mr. Poitras reasonably expected that Mr. Grondin’s work would be consistent with the work of a mason engaged in that trade for 40 years. He could expect that difficulties in performing the work would be brought to his attention and resolved in a collaborative way, and that the work, performed in a good and workmanlike manner would be completed in a timely fashion and at a reasonable, though significantly discounted price.

[41] For his part, Mr. Grondin could reasonably expect favourable working conditions, suitable materials and supplies to the extent that they were provided by Mr. Poitras and payment for work done adequately. Mr. Grondin could also reasonably expect Mr. Poitras to be knowledgeable in the construction of homes and conscious of the consequences of his decisions. To be clear, Mr. Poitras was the builder/contractor. This conclusion is based on the following findings. Mr. Poitras was building the house for himself and his family. No one else was responsible for the planning and construction. Mr. Poitras had experience in building houses professionally. Mr. Poitras was experienced enough to perform a large portion of the work himself, including some fairly specialized and intricate tasks. Mr. Poitras hired all sub-contractors and negotiated the contracts. Mr. Poitras hired Mr. Grondin. He provided the stone and brick, the mortar, the sand, water for the site, and all materials including sills, Tyvek moisture barrier, blue skin and flashings, angle irons and lintels, chimney flues and the Napoleon fireplace insert that he arranged to have installed by someone other than Mr. Grondin.

[42] Mr. Poitras was responsible for the fresh air intakes and the location in which they were installed. To the extent that they were obtained, Mr. Poitras took the responsibility of obtaining permits and inspections. When the canopy above the main entrance collapsed, Mr. Poitras resorted to his builders’ insurance policy and was compensated on the basis of remedial work performed by a contractor, himself, without the 20% reduction applied when cash settlements are given to home owners, as opposed to contractors.

[43] Though Mr. Poitras has consistently and adamantly denied or deflected the issue of his status on this project, he was the building/contractor. Mr. Grondin was aware of these features of Mr. Poitras’ role in the construction of this home. Accordingly, he was reasonably and objectively entitled to consider himself under contract with an experienced and competent contractor. I agree with counsel for the Poitras submission that this does not relieve Mr. Grondin of his contractual obligation, implied even in the case of a verbal contract with a builder/contractor, to perform his work in a good and workmanlike manner. That said, Mr. Poitras cannot direct the project to proceed with dirty sand and water, in harsh winter conditions, with an uneven foundation, lintels that were under the required length as dictated by the Ontario Building Code, and with an apparent indifference to other design and construction problems and at the same time attempt to place the responsibility for these obvious shortcomings entirely on the shoulders of Mr. Grondin. I have concluded that when challenges presented themselves to Mr. Grondin rendering the performance of his work more difficult, he was directed to proceed nonetheless.

[44] In my view, Mr. Poitras’ concession that ditch or wheel rut water may have been used in the mixing of the mortar (evidence of Shawn Poitras October 25, 2012 at page 93) demonstrates that he was prepared to accept sub-standard work and directed that it continue. Mr. Poitras cannot have averted to and tolerated substandard working conditions and results and at the same time resile from that position in litigation flowing from the defects in the project. The situation would be vastly different if Mr. Grondin had been hired to perform all of the work, supply all of the materials and performed the work without supervision or direction. Mr. Poitras’ evidence is that he reminded Mr. Grondin of the need to heat the masonry work when the temperature fell below 5° C. Had Mr. Grondin been left entirely to his own devices, with a simple mission to cover the house in stone and build 2 chimneys and fireplaces, supplying the materials and means, the contract, and indeed the price would have been different, and his degree of responsibility would be absolute.

[45] In the present case, the various responsibilities were never agreed upon and contracted to. Moreover, Mr. Poitras directed the conduct of this project and its various facets including the installation of stone veneer and other masonry work. This renders the present case distinguishable from most cases involving the hiring of subcontractors.

[46] In terms of other reasonable expectations that can be extrapolated from the present contractual relationship, Mr. Grondin was entitled to expect a degree of co-operation and assistance that he did not receive. The problems with the sand and the water have been alluded to. There developed an obvious conflict between Mr. Poitras and Mr. Grondin’s right hand man, Daniel Claude. The tension between Mr. Poitras and Mr. Claude was palpable during the trial. It was therefore not surprising when Mr. Poitras testified that he asked on at least 2 occasions during the construction that Mr. Claude leave the work site as a result of conflict between the two men.

[47] I have concluded that, in the result, Mr. Grondin did not receive the co-operation he could reasonably expect, whether it was in relation to the quality of the sand or the water, or the storage of the stone veneer in the enclosed garage during the winter months in order to keep the product dry and free from snow or ice, or indeed the supply of certain materials. These observations are not intended to signify that Mr. Grondin could absolve himself of any responsibility for the quality of his work. They are intended to demonstrate that the reasonable expectations of each party were not met thereby rendering their tenuous agreement practically impossible to abide by.

[48] It is nonetheless necessary to examine each of the facets of the work in some detail in order to determine the extent to which Mr. Grondin has not been paid for work he did in accordance with the parties’ mutual reasonable expectations and correspondingly, the extent to which, if any, the work performed by Mr. Grondin in the circumstances of the ongoing and self-defining process represents a breach of the terms of the contract as reasonably understood and anticipated by the Poitras, and whether other costs have been generated.

THE EXTERIOR MORTAR

[49] By most accounts, the exterior mortar attaching the stone veneer to the 4 faces of the house did not cure, in all areas, as one would normally expect. The most prominent areas of deficiency are to the north elevation (the front of the house) and the west elevation (to the right from a front facing view, in the area of the attached garage). The problem appears to derive from the lack of sufficient heat during the curing process – the OCB requiring an ambient temperature above 5° C for 48 hours after installation.

[50] The problem however is not pronounced. Firstly, the compression testing of the mortar samples removed by St. Lawrence testing was conducted in unusual circumstances. The evidence of Salvatore Fasullo from Davroc Testing Laboratories (October 22, 201, pp. 73-85) establishes that compressive strength testing is normally conducted before mortar is applied, not after.

[51] It ideally involves the preparation of a set size of samples that can be examined for compression strength, or resistance to weight. In the present case, irregular shaped samples, taken several months, and in some cases, several years after installation, were examined. While those samples displayed visual signs of frost damage, they demonstrated compression strength beyond the minimum requirement under the OBC. (5.5 MPa to 11.1 MPa with an OBC minimum requirement of 3.5 MPa). Given the visual evidence of frost damage and the relative ease with which the mortar was, in some areas, dislodged from the stone, Mr. Fasullo testified that replacement of the joints or at the very least re-pointing (excavating 30 mm of mortar and replacing it) was indicated. His opinion is based on the possibility that there could be further mortar deterioration. This evidence is difficult to reconcile with Mr. Fasullo’s conclusions that the mortar appears to have gained in compressive strength when the samples taken in 2008 are compared with samples taken in 2012. The expert testimony that further cycles of freezing and thawing could, in the long run, create further difficulties in terms of the mortar’s adherence and strength is insufficient to establish the need to re-point the entire north and west elevations. The weight of the evidence is that the surface of the joints in several undetermined areas suffered frost damage enabling, in some cases, the removal of the surface layer with a nail or screwdriver. I have concluded that a certain amount of re-pointing is necessary. I am not persuaded that those areas have been properly identified. A simple yet thorough examination of the entire joint line of the north and west elevations would serve to identify where the mortar is loose as a result of freezing. Re-pointing could be undertaken at those locations. This type of remedial work is routinely undertaken by experienced masons and can be achieved in a practical and cost-sensitive manner.

[52] In the very specific circumstances of this case, the Court has concluded that Mr. Grondin has been adequately compensated for the work he has done, and Mr. Poitras, as the builder/contractor has essentially received what he bargained and provided for. This conclusion is based on the cumulative effect of the following considerations.

[53] Mr. Poitras provided, in some circumstances water and sand that contained contaminants capable of affecting the suitability of the mortar. Mr. Grondin cannot be responsible for the collapse of the canopy above the main entrance at a time when, I have concluded on balance, some masonry work was underway, according to the evidence notably of Francois Joyal, and to a lesser extent the evidence of Mr. Grondin, Daniel Claude, and Scott Deprato. The heating requirements for winter masonry appear to have been neglected in some instances. The evidence that propane tanks installed by Mr. Grondin were at times located inside the house after hours on weekends is uncontradicted and consistent with Mr. Poitras’ evidence that it is during those times that his other trades worked in the house.

[54] The Court accepts the uncontradicted evidence of Mr. Grondin that, mindful of the less-than-perfect conditions for stone installation, he upgraded, on his own initiative, the type of mortar from N-type to S-type. In the combined circumstances of this project, a limited amount of frost damage was to be expected and was in fact the result.

[55] The Court cannot accept the evidence presented by the Poitras’ experts concerning remedial work.

[56] Firstly, the Poitras would not, at the outset, objectively speaking, have contracted for the services of these individuals. The prices quoted and expenses listed were clearly quite the opposite end of the price spectrum that the Poitras had in mind. That these experts’ prices and quotations include provincial and federal goods and services tax goes only to highlight the disconnect between what was bargained for at the outset of the project and what is claimed presently. Restricting itself to the issue of repointing, the Court is of the view that, while inevitably somewhat biased in his view, Mr. Jacques’ evidence on the price and cost of repointing in Cornwall for the cost-conscious consumer is far more realistic. The Court cannot engage, in matters of breach of contract, in awarding an amount that far exceeds the loss suffered or cost incurred as a result of the breach. Taken together, the preceding considerations lead the Court to conclude that while less was paid, on an apportioned basis, in relation to the exterior stone installation, than may have been reasonably expected, less was received and the balance can and should be applied to repairs, where necessary, on the basis of a proportionate service.

OTHER EXTERIOR FEATURES

[57] Though not originally complained of to Mr. Grondin by the Poitras, the extensive examination of various other exterior features of the work has lead to the discovery of various other shortfalls, including the use of nails as brick ties, the lack of sufficient weep holes, irregularities in the width of mortar joints, lintels of insufficient length, sills below the windows of peculiar appearance, and excessive overhang of the stone veneer on the south elevation in the area of the garage.

[58] The examination of these irregularities must necessarily begin with the observation that Mr. Poitras provided the materials for this project and prepared the site for the masonry work. Despite the testimony of several witnesses on the subject of brick ties, the Court is unable to conclude that the use of galvanized nails, as provided by Mr. Poitras, is an unsuitable product to perform the function of ensuring that the stone veneer is suitably attached to the house structure.

[59] The evidence reveals that this practice, which has fallen out of use in more recent construction, remains an occasional practice. Be that as it may, it can be remedied at a cost that is not exorbitant by the retro-fitted use of brick ties that can be installed at the end of a project. Mr. Grondin has testified that he has done so in the past. For the reasons already given, and in the context of what the Poitras’ reasonable expectations have to have been, the expense of this particular remedial work should not befall Mr. Grondin.

[60] Similarly, the lack of sufficient weep holes is a matter of fairly simple remedial work which the evidence demonstrates is routinely done with modest effort and at minimal cost. The removal of excess mortar, or mortar “splash” falls in the same category. It bears mention that when the relationship between Mr. Grondin and the Poitras ended following the May 2008 confrontation at the Poitras residence, Mr. Grondin had offered to repair any deficiencies that had been, at that time, identified by Mr. Poitras. This offer was refused by Mr. Poitras. Whether Mr. Grondin abandoned the project or was effectively expulsed from the site is, at this juncture, largely a matter of perspective and conjecture. The working relationship, tenuous as it had been, came to an abrupt end.

[61] That said, the list of complaints presently made by the Poitras, the Court is convinced, would have been considerably shorter had the parties agreed upon a reasonable way to deal with some of the deficiencies. The abrupt end to the relationship resulted in the usual remedial work not being done. Both parties share the responsibility for this.

[62] Based on his experience in the field and his having performed this type of remedial work in the past, Mr. Grondin’s evidence that he was willing and able to carry out the remedial work identified at the time is accepted by the Court.

[63] On the issue of the irregular sizes of mortar joints in certain very limited areas on the project, I would observe that these are not readily discernable. The very appearance of the varying sizes of stone and the heritage look to be achieved calls for some irregularity. A simple view of the finished product, notably as seen in exhibit 1-tab 5, and exhibits 28, 29, 30, 39 , at pages 12-14 tends to suggest that the desired look was achieved, with such minor variations as can be expected given the appearance that was intended.

[64] That the Poitras did not specifically complain about the varying sizes of the mortar joints places the evidence of Mr. Tomlinson from Morrison Hershfield on this topic well beyond the reasonable expectations of the Poitras. To the extent that certain joints may represent slight variations beyond what could be reasonably expected, the Court accepts the evidence of Mr. Grondin that the removal and replacement of certain stones in favour of varying sizes that would allow for more uniform joints is a routine procedure, regularly performed by experienced stone masons.

[65] On the issue of the lintels or angle iron supports above the window openings, it must firstly be borne in mind that these items were provided by Mr. Poitras.

[66] The expert evidence in this trial reveals, quite understandably, that stone masons, while expected to have some working knowledge of OBC requirements, are not expected to be fully versed in every specific requirement. In my view, the situation would be significantly different had Mr. Grondin undertaken to supply these materials at the request, and under specific contract terms, with a novice or inexperienced builder. Mr. Poitras chose the stone, and all related materials. The lintels are nonetheless in substantial compliance with the building code, representing 75% compliance (4.5 inches beyond the width of the window opening as opposed to 6 inches of overreach) in relation to window openings of a fairly restricted size. The evidence at trial also reveals that partial compliance, assuming minimum building standards are met, will occasionally be sufficient for inspection purposes. In any event, the Court has concluded that Mr. Poitras, as the builder/contractor having provided the materials and instructions for their use, cannot at this juncture be heard to complain about their deficiencies. This conclusion is based on the very particular circumstances of the present case and is informed by the application of the recurring theme of reasonable expectations. Mr. Poitras could reasonably expect that Mr. Grondin would employ accepted methods in achieving a satisfactory result. Mr. Grondin could reasonably expect that having planned and executed this project by supplying stone and related materials and products, Mr. Poitras would ensure their suitability. This finding is consistent with the rationale expressed in Tambeau Construction Ltd. v. Bos et al. (1990) 42 C.L.R. 216 (Ont. Ct. G.D.).

[67] As already observed, the estimates for repairing this feature of the work as supplied by the Poitras’ witnesses in my view, far exceed what the Poitras themselves would expect to pay if the work is necessary.

[68] The same conclusions apply to the window sills. The plans for this house were prepared based on the specifications given by the Poitras. Mr. Grondin cannot be responsible for the Poitras’ dissatisfaction concerning the aesthetics of the window sills, as demonstrated in exhibit 39, page 28. By his own evidence, Mr. Poitras was forced to compromise on the aesthetics of the house in other areas. His testimony revealed that the roof trusses he ordered and installed did not allow for the installation of stone veneer above the upstairs windows, as the roof sat “too low”, in a manner of speaking. This is particularly evident and demonstrated in exhibits 5, 28, 29 and 30.

[69] I would conclude that this is demonstrative of the Poitras’ reasonable expectations in circumstances where an enormous, elaborate and expensive project was undertaken, and in large measure, executed by the home owners themselves.

[70] This principle is perhaps best demonstrated by the slight overhang of stone veneer on the south face of the home in the area of the garage.

[71] Mr. Poitras built the foundation and framed the house. He chose the stone to be affixed to it. The actual “overhang” was between 1/8 and 1/4 of an inch beyond the 1 inch permitted by the OBC. In these circumstances, Mr. Poitras, the builder/contractor, must bear the consequences. Remedial work at the area of this deficiency is possible at, I would conclude, a cost far inferior to that quoted by Mr. Tomlinson. It falls, I have determined, within the area of reasonable expectations, either to be accepted as substantial compliance or corrected using the same economical approach that the Poitras employed in the overall construction of this home.

[72] In summary then, and in consideration of Mr. Poitras’ role in planning and supplying this project, in view of the findings of the experts and the Court’s assessment of both the need for and cost of limited remedial work, I have concluded that to the extent that both parties contributed to the potential need for remedial work, neither should bear the entire responsibility.

[73] Mr. Grondin was paid $20,000.00 cash for the work he did. Properly equipped, supplied and supported, his efforts were worth more. How much more and the extent to which he contributed to the need for some remedial work to the exterior is as vague and nebulous as the agreement that the parties entered into. Neither should gain or lose from the collective failures in certain areas of the construction of this home.

THE FIREPLACE AND CHIMNEYS

[74] This feature of the construction is a far more perplexing problem. If indeed the chimney flues were not attached and sealed using OBC standards high heat cement, they are in total violation of the Code and must be dismantled and replaced. This, according to the expert evidence, represents a cost of some $150,000.00.

[75] On this issue, the Court must determine whether, on a balance of probabilities, it has been shown that for reasons of inadequate mortar, and other installations flaws as identified by chimney expert, Victor Button, the chimneys must come down. I am not so persuaded for the following reasons.

[76] At the heart of this issue is whether Mr. Grondin installed the 4 chimney flues using high heat cement. His evidence, though difficult to understand and reconcile at times, is ultimately that he did.

[77] More importantly, Mr. Grondin represented in a document made contemporaneous to the installation of the chimney flues that they were built using high heat cement. These documents comprise tab 2 of exhibit one. The hand drawn sketches show the dimensions of the chimneys, the interior construction and attest to the use of high heat cement (page 7 of exhibit 1, tab 2). Finally, Mr. Grondin confirmed in the February 4, 2008 document written by Mrs. Poitras (exhibit 1, tab 12) that the chimneys were “ok to light”. At a time when the issue was not contested, Mr. Grondin represented that the flues were sealed with high heat cement. He was, not surprisingly, given his 40 years of experience, aware at the time of the need to use high heat cement in chimney flues. His affirmation made at the time, as requested by the Poitras in order for them to be able to use the chimneys to heat the house, would have had to have been a false declaration with full knowledge of the need to use high heat cement. Mr. Grondin’s knowledge of the properties of various cement mixtures is evidenced in his uncontradicted testimony that when he became aware of the challenges in completing the project due to the type of stone used and the risks of freezing, he upgraded, of his own accord, from type N to type S cement.

[78] Quite apart from the finding that Mr. Grondin used high heat cement according to his own testimony, I have determined that the testing of the chimney flue cement, conducted several years after the fact, is not reliable for two reasons.

[79] Firstly, it is not at all clear how Mr. Poitras managed to collect cement samples from inside the flue. The flue liners consist of 24″ long, 9½″ wide clay tubes that fit into one another, the top flue section resting on a moulded shoulder on the section below it. By the evidence of all witnesses able to testify on this issue, the cement used to bind and seal these joints consists of cement applied to the joint and pressure then applied to the top section onto the lower section.

[80] The evidence establishes that the seal represents 2 or 3 mm of actual cement. Even with some minor over flow, the interior of the flue channel is expected to be relatively unobstructed. In those circumstances, it is difficult to understand how Mr. Poitras was able to place his arm inside the fireplace, “bang” the interior of the flue and dislodge the chunks of cement that were later examined.

[81] In addition, the results of the testing are not expressed in a degree of certainty that rebuts the evidence of Mr. Grondin and the notations made contemporaneous to the fabrication of the chimney to the effect that high heat cement was used. The report of St. Lawrence Testing and the evidence on this point is that “the test results indicate that the mortar used in the chimney liner is of similar composition of mortar as compared to the other samples tested, and likely does not contain Portland cement.”

[82] The use of the expressions “similar composition” and “likely does not contain” is, in the Court’s view, insufficient to rebut the evidence which the Court accepts that Mr. Grondin was aware of the technical requirements involved in chimney construction and met those requirements. This conclusion is supported by a finding that the evidence supports the position taken by Mr. Grondin concerning the other features of the chimneys’ construction. On the issue of the other features of the chimneys’ construction, the Court rejects the evidence of Victor Button.

[83] Mr. Grondin has testified that the chimneys were constructed using brick, clay flues and stone veneer supplied by Mr. Poitras. Mr. Button’s evidence is that the overall dimensions of the exterior chimneys does not allow for such a construction. I have concluded that two 9 & ½ clay liners contained in a properly constructed chimney requires, at the least, an outside dimension of 38 inches by 26 inches. These dimensions are required given the width of the liners, (9 & ½ inches) the expansion space that must be provided (3/8″ around the liners) the solid mortar element that must divide the liners, in this case, a row of bricks (3 & ½ inches) the solid mortar construction that must surround the two liners, again brick in this case (7 inches) and the exterior veneer on each face of the chimney (8 inches total). Mr. Button’s evidence is that the exterior of the chimneys as observed above the roof line are 32 inches by 20 inches.

[84] His evidence, as that of Mr. Andre Paré from Paranis Construction, is that the chimneys were “precariously measured”, an expression that was not explained, and somewhat difficult to interpret.

[85] There are no photographs of the exterior chimneys to scale. The measurement of the chimneys and its recording with a photograph demonstrating the scale would have been relatively easy to provide. Rather, the Court is left to reconcile the evidence of the various witnesses including a reference to the “precarious” measurement of the chimneys. In this regard, I consider exhibit 30 to be conclusive. The photograph depicts the chimney on the south side of the house, the fireplace chimney, and shows it to be wide enough for the flues to be well distanced from each other and contained within an exterior that provides for the construction of a mortar (brick) surround and stone facade. The most significant element of this photograph is the space between the flues. It is not disputed that both chimneys were constructed identically. Mr. Button observed creosote residue in the cleanout section of the furnace chimney, having gathered at the bottom of the flue which had been constructed to accommodate a ground level cook stove. Mr. Button offered the explanation that, as no cook stove was ever installed, the creosote was possibly the transfer of creosote from the furnace flue to the cook stove flue, in circumstances that he was unable to explain. He speculated that the flue associated with the furnace may have “breached” and that the creosote might have thereby travelled into the cook stove flue. This explanation, according even to Mr. Button, was speculative at best as he had never witnessed such an event. It is the offer of this explanation that has led the Court to conclude that Mr. Button was advocating certain propositions that were unreasonably favourable to the Poitras. Exhibit 30 clearly demonstrates the space between the chimney flues and directly contradicts the “transfer of creosote” theory of Mr. Button.

[86] Confronted in cross-examination with the possibility that a chimney cap may have been installed, by Mr. Poitras, too close to the top of the furnace chimney and that the migration of smoke from the furnace flue together with the failure to have the chimney swept annually may account for the creosote, Mr. Button reluctantly allowed for the possibility.

[87] Ultimately, the photographs of the chimneys contradict Mr. Button’s evidence and renders it of little assistance.

[88] Similarly, Mr. Button is of the view that the fireplace insert was not properly installed as he concluded that there had not been the installation of an angle iron frame around the insert, necessary to support the weight of the fireplace. He bases his conclusion on the presence of 1 mm fissures in certain areas around the fireplace. What is noteworthy is that the evidence suggests that the entire fireplace structure represented several tons of stone and mortar, and would inevitably cause the collapse of the fireplace insert. The fireplace has withstood the weight for several years without collapse, and was until Mr. Button’s visit, in regular use.

[89] I accept the evidence that the fissures are the result of expansion and contraction and rely again on the field notes made by Mr. Grondin following the construction of the chimney which allude to the construction of the steel frame. The Court is not prepared to conclude that Mr. Grondin was aware of the requirements in chimney construction, overlooked them and fabricated their existence in the preparation of the document found at exhibit 1, tab 2.

[90] The document in question, it must be noted, was prepared after the fabrication of the chimneys as proper inspections had not taken place. While the lack of plans may not have significantly impeded Mr. Grondin in his work, the absence of a second chimney in the original house plans by which the initial building permit was obtained, and the failure to arrange for inspections as needed, part of the builder/contractor’s responsibilities, has raised questions which are only now being addressed.

[91] On the issue of Mr. Button’s partiality, his evidence was that the installation of air intakes for the fireplace was substandard as the exterior of those intakes lay too close to the surface of the ground or the deck around the house and could become easily obstructed. This evidence was elicited by the Poitras, the inference being that Mr. Grondin had been remiss in yet another feature of the installation of the fireplace insert and chimneys. The uncontradicted evidence at trial is that Mr. Poitras was responsible for the installation of both the insert and the air intakes, and that Mr. Grondin had played not part in those features of the fireplace.

[92] In light of the contemporaneously made notes and diagrams concerning the construction of the chimneys, given the absence of compelling evidence with which to reject the evidence of Mr. Grondin, and in viewing the available photographic evidence, I have concluded that the chimneys and flues are suitable for use and not in violation of the OBC and do not accordingly require demolition and reconstruction.

[93] The suggestion that the mortar at the top of the fireplace is of a different colour than the mortar elsewhere overlooks the fact that the photographs tend to show that the stone is as well. Mr. Grondin is surely not responsible for different coloured stones. Whether the discoloration is the result of smoke damage from the fire at the house in the winter of 2009 or some other cause, I cannot conclude that the discoloration at this particular location is the result of Mr. Grondin’s workmanship.

[94] One final note on the interior aspects of the fireplace. Mr. Poitras built the cement slab on which the fireplace rests and framed the entire house. To the extent that the fireplace may be within impermissible proximity to combustible material, I have concluded that this design flaw cannot be the responsibility of the mason. Mr. Grondin was not, at this price, hired to take measurements of work performed by an experienced and assertive builder. To the extent that the responsibility may be one that is shared, Mr. Grondin cannot reasonably expect more than he has been paid for the work which, in certain cases, the Court has recognized to be substandard. To attempt to bring the issue to any finer a point would be to attempt enforcing contractual obligations that were not discussed or agreed upon.

[95] The final feature of the chimneys to be addressed is the height of the chimneys. The evidence on this point reaffirms Mr. Button’s partiality. The evidence of the height of the chimney is far from conclusive in this trial. A simple measurement would have been helpful rather that estimates based on stone counting and photographs measured to scale.

[96] The chimneys would appear nonetheless to slightly exceed the allowable height without lateral support. The solution is either to shorten the chimneys or to brace them. Mr. Grondin built the chimneys higher than he had been told because he was concerned about the roof line and the required clearances. He exceeded what was asked by him out of an abundance of caution. This, like most features of this project, was a measure improvised to suit the circumstances. Mr. Grondin, who had in May 2008 offered to correct any defects, cannot at this juncture be accountable for what would ultimately not be an expensive remedial measure.

CONCLUSION

[97] An action in breach of contract begins with the examination and determination of the contractual terms and obligations agreed upon by the parties. By their concerted effort to keep this contract between themselves, the parties have created a situation whereby the Court can only proceed on what common sense and reasonable inferences dictate were the parties’ reasonable expectations at the beginning of the project, not at the end.

[98] While neither the plaintiff nor the defendants were witnesses whose evidence was particularly compelling, there is enough information, objectively identifiable, to suggest that neither parties’ reasonable expectations were met. Mr. Poitras was the builder/contractor in this project. As such, he cannot displace the responsibility entirely where the project failed.

[99] At the same time, Mr. Grondin failed to meet certain of the Poitras’ reasonable expectations. The Court has concluded that properly executed, Mr. Grondin’s work was worth more than he was paid. At the same time, the proven flaws in the work, largely cosmetic and minimally structural cannot be laid entirely at Mr. Grondin’s feet. Ultimately, the parties did obtain what they bargained for; an imprecise arrangement, improvised to suit the circumstances, arrived at between virtual strangers, speaking two different languages without a word in writing, on a cash basis. The Court cannot conclude that either claim has been established to the required degree of certainty, and accordingly, both the main action and the counterclaim are dismissed.

[100] Mr. Grondin received less than he could reasonably expect however was entitled to less given the final result. The responsibility for those results must be shared by the Poitras given their role in the construction of this home and their failures, as set out above, in ensuring satisfactory results. The Poitras will be required, if they chose, to apply the balance that would have been owed to Mr. Grondin, to perform the necessary remedial work.

[101] Unless they are able to agree otherwise, the parties may exchange and file written cost submissions not to exceed two pages together with accompanying documents within 60 days of the release of these Reasons for Judgment.

Justice Robert Pelletier

Released: July 29^th, 2013

COURT FILE NO.: CV-08-986

DATE: 2013/07/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GASTON GRONDIN MASONRY LTD.

Plaintiff

– and –

NATALIE POITRAS AND SHAWN POITRAS

Defendants

REASONS FOR JUDGMENT

Justice Robert Pelletier

Released: July 29^th, 2013