COURT FILE NO.: C-456-09
DATE: 2013-09-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SCOTT RANDOLPH RIMMER and WILLIAM RALPH RIMMER
Plaintiffs
– and –
CAROLE LAHEY, BUILDING INSIGHTS INC., KELLY DACOSTA, RE/MAX TWIN CITY REALTY INC., ART RAE and GOLDEN TRIANGLE REALTY INC.
Defendants
Andrew F. Camman and Joyce M.D. Thomas, for the Plaintiffs
M. Gosia Bawolska and Emily Zeppa , for the Defendant Building Insights Inc.
HEARD: June 24, 25, 26, 27, 28, and July 5, 2013
THE HONOURABLE JUSTICE D.A. BROAD
reasons for judgment
Background
(a) Parties and the Nature of the Claim Advanced
[1] The Plaintiff Scott Randolph Rimmer (“Randy Rimmer”) and William Randolph Rimmer are son and father and are the purchasers of property described as 99 Duchess Drive in Cambridge, Ontario (the “dwelling”). The plaintiffs allege that following their purchase and occupation of the dwelling they discovered that the western foundation wall “was sinking and had been for some time.” They sued the vendor Carole Lahey, their real estate agent Art Rae as well as the brokerage with which he was associated, Golden Triangle Realty Inc., the vendor's agent Kelly DaCosta, the vendor’s brokerage Re/Max Twin Cities Realty Inc. and their home inspector Building Insights Inc. (“Building Insights”) for damages comprised of the costs to repair the foundation defect estimated in the sum of $250,000.
[2] The action was dismissed, on consent, against all of the defendants with the exception of Building Insights. The plaintiffs assert that they contracted with Building Insights to conduct an inspection of the dwelling which gave rise to a duty of care to conduct the inspection in a reasonable, thorough, proper and honest manner and that it negligently completed the home inspection.
(b) Factual Background
[3] On July 5, 2008 the plaintiff Randy Rimmer entered into an agreement of purchase and sale for the purchase of the dwelling for a purchase price of $237,500, conditional upon being satisfied with a home inspection and upon financing. Randy Rimmer is hereinafter referred to as Randy rather than Mr. Rimmer in order to distinguish him from his father William Rimmer and no disrespect is intended thereby.
[4] Randy contracted with Building Insights to conduct the home inspection. The principal of Building Insights, and the inspector who carried out the inspection, was Keith Langlois, who was at the time of the inspection, and remains, a registered home inspector with Ontario Association of Home Inspectors (the OAHI”). Prior to carrying out the inspection Mr. Langlois provided Randy with a form of Pre-Inspection Agreement (the Inspection Agreement’). Randy read the Inspection Agreement and signed it prior to the inspection commencing.
[5] Randy accompanied Mr. Langlois while he carried out his inspection in the course of which they had various discussions respecting observations made by Mr. Langlois concerning the dwelling. Mr. Langlois pointed out the existence of cracks in the brick masonry, cracks in the concrete driveway at the southwest corner of the dwelling and settlement of the concrete porch on the front of the dwelling and suggested minor remedial measures to deal with those matters. Mr. Langlois testified that he did not enter the crawlspace in the rear basement area due to the presence of stored obstructions (although this was disputed by Randy) but rather shone a flashlight into the crawlspace to observe the foundation walls.
[6] The inspection took approximately one hour to complete, not including the time spent by Mr. Langlois in preparing his report (the “Inspection Report”) which he produced following the inspection and provided to Randy. Randy "skimmed" the Inspection Report but did not read it in its entirety, and on the following day he waived the condition in the Agreement of Purchase and Sale regarding the home inspection, as well as the condition respecting financing. Randy directed the vendor to convey title to the subject property to himself and his father as tenants in common and the purchase transaction was subsequently completed on that basis.
[7] The dwelling is a “back-split” home, constructed in or about 1978 with the living, dining and kitchen areas in the front portion, with three bedrooms and “fireplace room” in the rear section. The basement level consists of two distinct areas, the first being a full height finished basement area below the front half of the building and the second being a partial height unfinished crawlspace below the rear half of the building. There are two levels of living space above the crawlspace at the rear of the building. The front of the dwelling faces west and the rear faces east. There is a concrete driveway on the south side of the dwelling leading from the street to the rear, however, a wooden fence running perpendicular to the south wall to the rear of the side door separated the section of the driveway utilized by vehicles from a portion used as a patio towards the rear of the dwelling.
[8] Shortly after occupying the residence following closing, Randy noted, while entering from the side door, that the kitchen floor was not level. When he placed a tennis ball in the centre of the kitchen it rolled to the south (driveway side) wall. After consulting a friend in the contracting business, Randy sought legal advice and subsequently commissioned a geotechnical investigation from CMT Engineering Inc. which involved drilling boreholes approximately four feet away from each of the four corners of the dwelling.
[9] A report setting forth the results of the geotechnical investigation was prepared by Robert Koopmans P.Eng, The report disclosed low N-counts and serviceability pressures in the soil at borehole #2 (in the vicinity of the southwest corner – i.e. at the front on the driveway side) and to a lesser degree at borehole #3 (in the vicinity of the southeast corner – i.e. at the rear on the southwest driveway side). Mr. Koopmans expressed the opinion in the report that the site had been filled prior to construction and the fill was not properly compacted on the south side of the dwelling. He suggested that the differences in the bearing capacity values in the vicinity of the south wall and those in the vicinity of the north wall resulted in differential settlement of the dwelling, confirmed by observed excessive sloping of the kitchen floor and a crack paralleling the south wall in the slab floor in the crawlspace.
[10] Some twenty-one months following receipt of the geotechnical report, Randy sought the advice of a structural engineer at Tacoma Engineering, Will Teron P.Eng, who undertook a structural review of the dwelling to assess the foundation settlement and provided an opinion as to its cause and significance. Mr. Teron’s report set forth the following observations respecting the condition of the dwelling:
(i) pronounced settlement of the front porch;
(ii) cracking and settlement of the concrete driveway adjacent to the residence;
(iii) cracks in the masonry adjacent to the chimney on the south elevation;
(iv) masonry step cracking at the southeast corner;
(v) vertical masonry cracks below the east elevation window;
(vi) front entry door and frame not square;
(vii) significant deflection of the floor joists below the kitchen area;
(viii) load bearing walls within the crawlspace installed with concrete brick below each stud, with the bricks bearing directly on the concrete slab on grade;
(ix) as noted above, the floor framing within the kitchen is depressed with a slope clearly evident within the kitchen;
(x) cracks evident in the living/dining room interior finishes;
(xi) crack in slab on grade floor of crawlspace parallel to and approximately three feet from the south foundation wall and deflection of floor toward the south; and
(xii) doorway between the kitchen and foyer out of plumb.
[11] Mr. Teron expressed the opinion that the dwelling has been subject to differential settlement causing the displacement of the interior framing elements, being most prominent along the south perimeter with a magnitude between 1.5 inches and 2 inches.
[12] Mr. Teron suggested that, based on his review, the significant settlement occurred shortly after the original construction in 1978, and, while there is no sign of ongoing movement, the lack of adequate soil conditions below the foundation, as disclosed by the geotechnical report of CMT Engineering, would warrant installing a secure foundation support system. He indicated that there are two general approaches to reinforce the footing system, firstly, to excavate to the underside of the footing and underpin the existing footings with new expanded concrete footings, or alternatively, to install a system of secondary supports such as helical piers. He recommended the latter approach as the most viable and economical.
[13] The plaintiff and their counsel obtained a quotation from a contractor Wyga Constuction (principal Otto Wyga) to for the cost of stabilization work using helical piers, as proposed by the reports of CMT Engineering and Tacoma Engineering. The proposed work in the quotation involved excavating around the foundation on three sides in order to install 24 helical piers, with all associated preparatory and site work, re-pouring the foundation for the front porch, re-pouring the front porch and driveway and installing or replacing the railing on the front porch. The estimated cost for this work was stated to be $89,900.00 plus HST. At the request of plaintiffs’ counsel, Mr. Wyga also provided estimates for extra work, if required, including jacking up foundation walls on south side and partial west wall once the helical piers are in place ($14,500 plus GST), replacing 30 feet of foundation following excavation ($27,300 plus HST), replacing the concrete floor in part of the basement ($9,900 plus HST), repairing damaged drywall/plaster, readjusting doors and windows, repainting and repair of some floors (allowance of $8,500 plus HST), and repairing/repointing brickwork (allowance of $5.000 plus HST).
Issues
[14] The issues for determination in this action are as follows:
(a) what was the nature and scope of the duty owed by the defendant home inspector Building Insights to the plaintiffs?
(b) was the Dwelling subject to a significant defect or defects which were discoverable upon a reasonable visual inspection of the readily accessible features of the dwelling?
(c) did Building Insights breach its obligation to the plaintiffs by failing to report on a significant observable defect or defects in the dwelling?
(d) did the plaintiffs rely to their detriment upon the representations made by Building Insights respecting the condition of the dwelling?
(e) if Building Insights is liable to the plaintiffs, what are their damages?
[15] It is noted that the plaintiffs' theory of the case at trial differed significantly from that pleaded in the Statement of Claim. Although the Statement of Claim stated that the plaintiffs contracted with Building Insights, it did not allege that Building Insights breached the contract, but rather it alleged that it was negligent in two alternate respects, firstly, that it failed to enter and inspect the crawlspace foundation wall, or, alternatively, that it failed to recognize the severity of defects in the western foundation wall observable from the crawlspace area.
[16] The entire focus of the Statement of Claim respecting the liability of Building Insights was on the foundation wall in the crawlspace, and indeed, there was no mention of a crack in the slab on grade concrete floor in the crawlspace or a deflection in the crawlspace floor. Moreover, there is no mention of a slope in the kitchen floor, doorways being out of plumb, cracks in the brick veneer, cracks in the concrete driveway or settlement of the front porch. There was similarly no specific mention in the Statement of Claim that the dwelling had been subjected to differential settlement. There was only a general allegation that the plaintiff had "suffered damages from the purchase of a home with a serious structural defect causing it to be unfit for habitation."
[17] The theory of the plaintiffs’ case at trial respecting the liability of Building Insights was quite different from that pleaded in the Statement of Claim, consisting of an allegation that it failed to conclude or discern from various observable "tell-tales" that the dwelling had been subjected to, and continued to be subjected to, either actual ongoing differential settlement or the risk of additional differential settlement. The “tell-tales” included the crack in the slab on grade concrete floor in the crawlspace, the slope in the kitchen floor, doorways being out of plumb, cracks in the brick veneer, cracks in the concrete driveway and settlement of the front porch.
[18] No objection was taken by the defendant Building Insights to the failure of the plaintiffs to properly plead the facts and basis for liability advanced at trial. In my view, this was quite proper, as the experts on both sides, in their reports, dealt with these fuller facts and did not restrict themselves to the narrow facts and issues alleged in the Statement of Claim. In Robert McAlpine Ltd. v. Woodbine Place Inc. (1998), 37 C.L.R. (2d) 38 (Ont.Ct. Gen. Div.) at para 219, varied on damages (2001), 2001 CanLII 23996 (ON CA), 7 C.L.R. (3d) 155 (Ont. C.A.), Wein, J. found that there was no injustice where it was alleged that a party failed to properly plead a certain issue, as it was clear from the outset of the trial that the issue was live. See also the recent case of 677960 Alberta Ltd. v. Petrokazakhstan Inc. 2013 ABQB 47 (Alta QB) confirming this principle.
[19] While acknowledging the importance of pleadings generally in defining the issues for trial, I am prepared in this case to consider the theory of liability, and the factual basis for it, as advanced by the plaintiffs at trial, notwithstanding that they were not properly pleaded in the Statement of Claim.
Analysis
(a) What was the nature and scope of the duty owed by the defendant Building Insights to the plaintiffs?
[20] The Inspection Agreement was executed by Randy on site immediately prior to Mr. Langlois commencing the inspection. Although on discovery Randy denied that he had read the Inspection Agreement, at trial he acknowledged that he had read it prior to signing it. He did not suggest that he was rushed or pressured into signing it (other than the deadline that he had set for himself, represented by the conditional period in the Agreement of Purchase and Sale), or that there was anything in the document which he did not understand. It was not argued at trial that the Inspection Agreement was not binding on Randy due to non est factum, duress, undue influence or unconscionability, or any other legal doctrine.
[21] The Inspection Agreement comprised one single-spaced page with six numbered sentences set out in bold print in the centre of the document. Some of the pertinent provisions of the Inspection Agreement, for the purpose of the issues in the action, included the following:
(i) the primary purpose of the inspection and the report is to educate the client about the general condition of the home through a visual examination of the readily accessible features of the property and reflects their condition at the time of the inspection;
(ii) the inspection is performed in accordance with the Standards of Practice of the Canadian Association of Home and Property Inspectors (CAHPI);
(iii) it is not a contractual obligation, nor is it possible, for the inspector to identify latent or hidden defects solely based on a visual examination;
(iv) the Report shall be prepared with reasonable skill and care and reflect the inspector's opinion within the limitations of a visual inspection;
(v) the inspection is not intended to be technically exhaustive. No excavation or removal of obstructions will be performed;
(vi) the inspection is intended to reduce the risk associated with purchasing a home, however, Building Insights cannot eliminate the risk and will not assume any risk in connection with the home's condition, deficiencies, performance or lack thereof;
(vii) emphasis is placed on identifying major problems which may affect the value or sale price of the property;
(viii) existing buildings are not required to comply with today's codes in retrospect, therefore the report makes no claims to compliance or otherwise with any building or construction related codes or insurance company requirements currently in force;
(ix) the client is aware that the fee paid for the inspection is for professional time and is not a warranty or guarantee of present or future conditions and is not an insurance policy of any kind.
[22] The Inspection Agreement did not set out the fee to be paid by the plaintiffs for the inspection and report, however it was indicated in evidence that the fee paid was $375 plus tax.
[23] Although the Inspection Agreement required the inspection to be performed in accordance with the Standards of Practice of CAHPI, it was the Standards of Practice of the Ontario Association of Home Inspectors (OAHI), adopted from the American Society of Home Inspectors (ASHI) (version January 1, 2000), which were referred to in evidence as being the applicable standards referenced in the Inspection Agreement.
[24] The stated purpose of the Standards of Practice is to establish a minimum and uniform standard for private, fee-paid home inspectors who are members of OAHI. Paragraph 2.1 of the Standards stated that home inspections performed to the Standards are intended to provide the client with information regarding the condition of the systems and components of the home as inspected at the time of the home inspection.
[25] Paragraph 2.2 requires an inspector to inspect readily accessible systems and components of homes listed in the Standards of Practice and to report on:
a. those systems and components inspected which, in the professional opinion of the inspector, are significantly deficient or are near the end of their service lives;
b. the reason why the system or component is significantly deficient or near the end of its service life;
c. the inspector's recommendations to correct or monitor the reported deficiency; and
d. on any systems or components designated for inspection in the Standards which were present at the time of the inspection, but were not inspected and a reason they were not inspected.
[26] With respect to the structural system, paragraph 3.1 of the Standards requires the inspector to inspect the structural components including foundation and framing and to describe:
the foundation and to report the methods used to inspect the under-floor crawl space; and
the floor, wall, ceiling and roof structures and report the methods used to inspect the attic.
[27] Paragraph 3.2 provides that the inspector is NOT (capitalization in the original) required to provide any engineering or architectural service or offer an opinion as to the adequacy of any structural system or component.
[28] Paragraph 13.1 provides that inspections performed in accordance with the Standards are not technically exhaustive and will not identify concealed conditions or latent defects.
[29] Paragraph 13.2 provides that inspectors are not required to enter under-floor crawlspaces which are not readily accessible.
[30] The nature and scope of a home inspection, performed in accordance with the Standards of Practice of ASHI (adopted, as indicated above, by OAHI) was considered by Justice Gillese, as she then was, in the early (as far as the home inspection industry is concerned) case of Biggs v. Harris [1999] O.J. No. 4831 (SCJ). She adopted the formulation stated by Justice Blenus Wright in the case of Selzer-Soberano v. Kogut, [1999] O.J. No. 1871 (SCJ) at p. 2, as follows:
The usual home inspection is general in nature and is performed by visual inspection. A house inspector cannot be held responsible for a problem that is not readily apparent by a reasonable visual inspection.
[31] Justice Gillese found that, in determining whether the inspector conducted a "reasonable visual inspection," the applicable standard of care is that contained in the Standards of Practice of ASHI, and concluded, at para. 33, as follows:
The standard of care owed is that of a reasonable visual inspection done in accordance with ASHI standards but, I would add, what is reasonable is to be determined, as well, by the cost of the inspection and the known level of expertise of the inspector.
[32] The formulation of the scope and standard of care owed in the case of a home inspection performed in accordance with the Standards of Practice, enunciated by Justice Gillese in Biggs v. Harris, was adopted in the more recent case of Gesner v. Ernst 2007 NSSC 146, a decision of D.K. Smith A.C.J.S.C. Justice Smith stated it, at para. 129, as follows:
[An inspector] must meet the standard of care that would be expected of an ordinary, reasonable and prudent home inspector in the same circumstances. When considering the standard of care owed by [an inspector] the court can take into account the standards of any relevant professional association relating to home inspectors. In addition, the court should consider the cost of the inspection and the known level of expertise of the inspector.
[33] A very useful summary of the scope of a typical home inspection was set forth by Stansfield, Prov. J. in Brownjohn v Ramsey 2003 BCPC 2 (BC Prov. Ct.) (a case which, although a Small Claims Court decision, has been referred to with approval in a number of Superior Court decisions) at paras. 16-17, as follows:
The point made repeatedly in the PTP contract, and mentioned consistently in the various cases to which I was referred — but most importantly, which simply accords with common sense — is that there are limits on what one reasonably can expect from a relatively brief visual inspection undertaken by someone who has no right to interfere with (and by that I mean no right to dismantle, nor to effect any permanent change in) the property which one must remember is not owned by the person requesting the inspection. As well, as a matter of common sense one has to recognize that a service performed for a fee of $240.00 cannot be expected to be exhaustive.
The broad purpose of securing a residential home inspection is to provide to a lay purchaser expert advice about any substantial deficiencies in the property which can be discerned upon a visual inspection, and which are of a type or magnitude that reasonably can be expected to have some bearing upon the purchaser's decision-making regarding whether they wish to purchase the property at all, or whether there is some basis upon which they should negotiate a variation in price. Broadly speaking, it is a risk-assessment tool.
[34] By the same token, it is noted that Stansfield, Prov. J. made the countervailing observation at para. 21 that a home inspector is involved in an inherently risky business which invites reliance. If prospective home purchasers did not believe they could secure meaningful and reliable advice about the home they are considering purchasing, there would be no reason for them to retain the inspector.
[35] Based upon the foregoing, the following observations may be made with respect to the nature and scope of the inspection of the dwelling carried out by Building Insights:
(a) it was to be general in nature;
(b) it was to be based only upon a visual inspection of the readily accessible features of the dwelling;
(c) the obligation to report was to be limited to seriously deficient systems and components or those nearing the end of their useful life, or put another way, major problems which may affect the value or sale price of the property, discoverable upon a visual inspection, as set forth above;
(d) the inspection and report would not constitute a warranty, guarantee or insurance policy, as exemplified by the relatively modest fee paid for the service. It was to be a risk-assessment tool, not a risk elimination or a risk transfer mechanism, as an insurance policy or warranty would be;
(e) the standard of care to be adhered to was to be that of an ordinary, reasonable and prudent home inspector in the same circumstances, measured in the context of the Standards of Practice of the OAHI; and
(f) it would not call for engineering, architectural or other specialized professional expertise.
(b) was the Dwelling subject to a significant defect or defects which were discoverable upon a reasonable visual inspection of the readily accessible features of the dwelling?
[36] Three experts gave evidence at trial on the question of whether there were serious deficiencies affecting the dwelling. As indicated above, Mr. Koopmans, P.Eng., of CMT Engineering testified with respect to the results of the geotechnical investigation carried out by his firm. Mr. Teron, P. Eng., of Tacoma Engineering, gave evidence on behalf of the plaintiffs with respect to structural engineering issues and with respect to recommended remedial steps. Terry Smith, P. Eng., of T. Smith Engineering Inc. gave evidence on behalf of Building Insights with respect to structural engineering issues as well as suggested alternate methodologies for carrying out geotechnical investigations of the dwelling.
[37] The experts agreed that the results of the geotechnical investigation indicated that the dwelling was likely constructed on fill and that there had been differences in bearing capacity in the soil below the footings under different parts of the dwelling. They also agreed that the south span of the lower first floor frame (that is in the front portion of the dwelling, in the area of the kitchen) was deflected downwards towards the south wall as a result of differential settlement. They all agreed generally that the settlement occurred shortly after the initial construction of the dwelling, some 30 years prior to the date of the inspection. Mr. Teron and Mr. Smith were also in agreement that there is no evidence of ongoing movement or settlement of the foundation, even up to the date of trial.
[38] The Messrs. Teron and Smith agreed that the slab on grade concrete floor of the crawlspace had a crack running parallel to and approximately three feet away from the south wall and that the floor was deflected downwards from the crack toward the south foundation wall. However they disagreed on whether the crack and deflection were related to the differential settlement of the foundation.
[39] The remaining defects, consisting of settlement of the front porch, cracking of the concrete driveway and cracking in the brick veneer, were all noted by Mr. Langlois in his inspection and brought to Randy’s attention.
[40] Mr. Koopmans expressed the opinion, in his report, that the floor on the main level will have to be raised in order to level it, and suggested that steel helical piles, seated in dense soils, could be used to raise the floor. Mr. Teron, in his report, concurred that support of the foundation system, which had undergone differential settlement, was recommended. While acknowledging that there is no sign of ongoing movement, he expressed the opinion that the lack of adequate soil conditions below the foundation would warrant installing a secure foundation support system. However, he did not go as far, as did Mr. Koopmans, to recommend that helical piers should be used to raise the floor.
[41] In contrast to the views expressed by Messrs. Koopmans and Teron, Mr. Smith questioned the need for remedial support, given that the foundation was not experiencing significant settlement. He commented that it is common practice, in assessing older properties, to determine whether fractures are active (continuing to move and deteriorate) or passive (no longer getting worse), expressing the view that conducting extensive destructive measures to provide remedial support to a passive foundation is not always necessary.
[42] It is noted that the phrase “significantly deficient,” as utilized in the Standards of Practice, is not defined in that document. The word “deficiency” is defined in the Oxford English Dictionary as “a failing or shortcoming” and “significant” is defined as “sufficiently great or important to be worthy of attention.”
[43] The experts were in agreement that all building structures settle to some degree. However, such expected settlement should occur uniformly. Applicable building codes, and generally accepted engineering standards, require uniform soil bearing capacity of at least 75 kPa for residential structures in order to assure uniform settlement. The presence of soil with lower bearing capacity beneath sections of the foundation creates the potential for differential settlement.
[44] In my view, there can be no question that the existence of soils below a section of a foundation which have insufficient bearing capacity to prevent continuing differential settlement constitutes a “failing or shortcoming” and therefore would be a deficiency.
[45] A question remains, however, whether it has been proven that the substandard characteristics of the soil disclosed in the geotechnical report of CMT Engineering are representative of the soil beneath the footing at the southwest corner of the dwelling. The expert evidence indicated that the weight of the dwelling itself on the soil would have caused compaction of the soil beneath the footing, thereby increasing its load-bearing capacity. As indicated, Messrs, Teron and Smith concurred (at least initially) that there was no evidence of any movement or settlement after the initial settlement following construction 30 years prior to the inspection, as exemplified by the absence of any cracking in the kitchen tile flooring, estimated by Mr. Langlois to be ten to fifteen years old, and by the lack of significant cracking in the interior walls and paint and in the foundation walls and brick veneer.
[46] In my view, for a deficiency to the dwelling to be “sufficiently great or important to be worthy of attention” and therefore “significant,” it must be “worthy of attention” for some purpose related to the proper functioning of the dwelling, its safe and comfortable occupation as a residence, or its value. An historical defect which does not carry with it a likelihood or probability of affecting the proper functioning of the dwelling, the reasonable enjoyment of its occupants, or its value should not, in my view, be regarded as “significant” within the meaning of the Standards. It is therefore only if the differential settlement of the foundation of the dwelling is continuing, or has a reasonable likelihood of reoccurring, so as to affect the functioning, occupancy or value of the property, that it would properly be regarded as a “significant deficiency.”
[47] Mr. Koopmans, in his report, stated that “based upon the investigation, it was not possible to determine when the settlement took place, but it would appear that it commenced immediately after construction and continued since that time.” The basis for the opinion that the settlement has continued since immediately after construction is not explained in Mr. Koopman’s report. This opinion is contrary to the written opinion of the plaintiffs’ other expert Mr. Teron who stated in his report that “there is no sign of ongoing movement,” and is also contrary the opinion of the defendant’s expert Mr. Smith.
[48] In the introduction to his report, Mr. Koopmans stated that CMT Engineering undertook a geotechnical investigation "to determine the cause of the assumed house settlement and cracking." The report described the investigation carried out by CMT on the properties of the existing soil on the property, comprising the taking of representative samples from four boreholes at described depths, and carrying out grain size analyses in its laboratory. The report did not describe any tests or investigations carried out to determine if settlement of the structure was continuing.
[49] In his examination in chief at trial, Mr. Koopmans characterized the observed strength of the soils at borehole #3 (in the vicinity of the southeast corner of the structure) as "borderline" and "probably decent" and at borehole #2 (in the vicinity of the southwest corner of the structure) as “definitely lower than what we would normally want to see" and "inadequate." In describing borehole #2 as the one in question, he testified that, while there is still potential for further settlement, if the status quo remains there is a "possibility of no further settlement."
[50] On cross examination, Mr. Koopmans acknowledged that he had not measured the floors for their levels at the time of his initial investigation nor on his re-attendance to the site just prior to trial, as that was a matter for a structural engineer, not a geotechnical engineer. He acknowledged that, since the concrete porch was independent of the house structure, it could be settling independent of the house, as could the driveway, which is similarly not attached to the house.
[51] Although Mr. Koopmans observed some cracks in the foundation walls, they were not considered very wide, being less than one quarter of a centimeter. He acknowledged that, although cracks through the bricks could be an indicator of settlement, there would have to also be corresponding cracks in the foundation as well. He also acknowledged that if the floor were deflecting 2 1/2 to 3 inches as he described, one would expect to see corresponding cracking in the exterior brick work, which he did not observe. Mr. Koopmans admitted that, on his re-attendance at the site just prior to trial, he did not take any measurements respecting the existence of ongoing differential settlement. It is noted that Mr. Koopmans had also re-attended at the site on June 29, 2011, together with Mr. Teron, and prepared a brief supplementary report following that attendance. In his supplementary report he repeated his opinion that the settlement “has continued,” and that there are “signs of cracks opening with time,” he offered no objective data or other particulars to support that opinion.
[52] Given that CMT was retained to investigate existing soil conditions, and it conducted no measurements to test for ongoing differential settlement, and given Mr. Koopman’s testimony that, if the status quo remains, there is a possibility of no further settlement, it is difficult to see the basis for the opinion expressed in his report that "settlement has continued." The most that can be said, based upon Mr. Koopman’s testimony, is that a change in the status quo could create the potential for further settlement occurring. Some of the examples which he cited included changes which could be made by the owner, such as the erection of a lean-to garage over the driveway, or the placement of additional loads through the installation of granite countertops in the kitchen or the placement of new shingles over the existing shingles on the roof. External man-made or natural factors could also create the potential for further settlement, such as construction on the adjacent road with associated vibration, earthquakes or heavy snow loading.
[53] As indicated above, Mr. Teron, in his report, expressed the opinion that the significant settlement to the foundation of the dwelling occurred shortly after the original construction in 1978 but “there is no sign of ongoing movement.” However, in his examination in chief he adopted a different position. He testified that stabilization of the foundation will stop “any ongoing movement or settlement.” When asked his opinion on the prognosis for the interior defects which he had noted (such as doors being out of plumb) in the absence of stabilization, he expressed the opinion that, based on the soil conditions as reported by CMT, ongoing settlement can be expected and the house will continue to rotate and settle differentially, resulting in ongoing deterioration on the inside, including cracking of the kitchen floor finish, and the cracks in the basement will increase.
[54] It is hard to reconcile Mr. Teron’s opinion in his report that there is no sign of ongoing movement, with his prognosis at trial that “ongoing” settlement can be expected and the house will “continue to" rotate and settle differentially. Given that his prognosis was premised upon the soil conditions as reported by CMT, is also hard to square it with the evidence of Mr. Koopmans suggesting that a change in the status quo would be required to create the potential for further differential settlement. On cross-examination, Mr. Teron retreated somewhat from his testimony in chief with respect to “ongoing” or “continuing” differential settlement, acknowledging that, on his re-attendance at the property prior to trial, he took no measurements verifying any ongoing movement of the dwelling, and, although he thought that a crack over an interior passageway was more pronounced than it was on his initial visit two years earlier, based only upon his memory of that visit, he acknowledged that none of the other observed cracks appeared to have gotten bigger.
[55] Mr. Smith, in his initial report of March 21, 2012, as indicated above, concurred with Mr. Teron’s initial opinion, in his written report, that most, if not virtually all, of the settlement likely occurred shortly after the initial construction of the dwelling, and that there was no evidence of ongoing movement of the foundation. In his second report, commenting on an estimate of remedial work prepared for the plaintiffs by PM Contracting Ltd. (which was not referred to at trial), he fairly acknowledged that, since the dwelling is constructed partially on identified fill material with a soil capacity ranging below the standard 75 kPa, there exists a possibility that additional differential settlement may occur in the future. He went on to state that, in the absence of significant changes in site conditions such as building loading or soil moisture content, and given the current condition of interior and exterior finishes, such further differential settlement is unlikely, but possible. This opinion is, in my view, consistent with the opinion expressed by Mr. Koopmans in testimony at trial regarding the possibility of differential settlement reoccurring or getting worse in the future as a result of some change to the existing conditions.
[56] There was no evidence led by the plaintiff with respect to the likelihood of additional differential settlement to the foundation occurring, and no analysis was offered regarding the nature or magnitude of the site changes, such as additional loads, vibrations or seismic events, which would be required to trigger such additional differential settlement, given the measured soil conditions. All that remains on the evidence is that future site changes or external factors such as road construction or earthquakes, could possibly result in additional differential settlement.
[57] The plaintiffs led no evidence that the historical or passive differential settlement which the dwelling experienced shortly after construction, would, if known, have a detrimental effect on the value of the property. It is not appropriate for the court, in the absence of expert or other relevant evidence, to surmise or infer that this factor would have a material effect on value.
[58] Given that the onus of proof is on the plaintiffs, I am not satisfied that it has been established that the risk of additional differential settlement has reached the level of likelihood or probability to support a finding that the soil conditions on the south side of the dwelling, as measured by CMT Engineering, constitute a significant deficiency, within the meaning of the OAHI Standards of Practice, incorporated by reference into the Inspection Agreement.
[59] With respect to the crack in the concrete floor of the crawlspace, and the 2” downward deflection of the slab towards the south (driveway side) foundation wall, I am similarly not satisfied on the evidence that these conditions constitute a significant deficiency. Mr. Teron, in his report, does not comment on the condition of the crawlspace floor as affecting the functionality or usability of the space, given that it is not suitable for any use other than storage. Although there was evidence of historical water infiltration by the presence of a line of effervescence on the crawlspace floor, Randy, in his testimony, did not point to any water infiltration in the five years of his occupation nor any impact of the condition of the floor on the functionality of the crawlspace. Mr. Teron similarly confirmed that he was unaware of any water infiltration associated with the crack. It was not argued by the plaintiffs that the crack and deflection of the crawlspace floor represented a deficiency affecting the usability of the crawlspace, or the value of the property, but rather simply pointed to it as a potential "tell-tale” of the existence of differential settlement of the foundation.
[60] However, in my view, the downward slope of the kitchen floor does constitute a significant deficiency. Although Randy, in his testimony, did not point to any impact of the slope in the kitchen floor on usability of the kitchen, or the reasonable comfort of himself and the other occupants of the dwelling, being his father and daughter, Mr. Smith did candidly acknowledge that the measured deflection of 54 mm in the kitchen floor is a “significant angle” for such a floor and he would regard it as a significant defect which most people would find objectionable. Mr. Langlois also testified that, in hindsight he would have included a comment about the sloping kitchen floor as it could affect the overall use or functionality of the kitchen.
(c) Did Building Insights breach its obligation to the plaintiffs by failing to report on a significant defect or defects in the dwelling?
[61] Having found that the slope in the kitchen floor was a significant defect, it is necessary to make a finding as to whether Mr. Langlois discharged the duty on Building Insights, as home inspector, to adequately report on it to Randy.
[62] As indicated above, paragraph 2.2 of the Standards requires an inspector to report on systems and components which are significantly deficient, and to report the reason why the system or component is significantly deficient and the inspector's recommendations to correct or monitor the reported deficiency.
[63] It is a common ground that the written inspection report prepared by Mr. Langlois is silent with respect to the slope in the kitchen floor. Randy testified that he did not notice the slope in the floor at any time prior to moving in to the dwelling following closing, including on his attendance with Mr. Langlois for the home inspection. He indicated that, prior to moving into the dwelling, he had, on each occasion, entered the kitchen from the front and it was not until he entered the kitchen from the stairs leading to the side door following occupation that he noticed the slope. He denied that Mr. Langlois made any mention of it during the inspection.
[64] Understandably, given the number of home inspections that he has conducted prior to and after the inspection of the subject dwelling, Mr. Langlois did not have any independent specific recollection of what was said between Randy and himself during the course of the inspection. In order to describe how he carried out the inspection in testimony he largely drew upon his usual practice in conducting home inspections.
[65] Mr. Langlois testified that he did have a conversation with Randy regarding the slope in the kitchen floor but could not remember any of the content of the conversation. He testified that it is part of his typical practice, when he detects a sloping floor, depending on the age of the home and the extent of the slope, to alert his client to it.
[66] Mr. Teron, in his written report, expressed the opinion that the “significant differential settlement as projected through the sloping floors” would be witnessed by any occupants of the dwelling. Included in this was his observation that the structural defects outlined in his report (including the sloping floor in the kitchen) were “in plain sight” and “should have been readily identified by the previous home owner, professionals associated with the property transfer and any home inspector retained to review the property.”
[67] Although one might reasonably wonder why Randy did not observe the slope in the kitchen floor himself during his pre-purchase attendances at the property, given the evidence respecting its nature and extent, I accept his testimony that he did not notice it, or at least it did not register with him, until after he took possession of the dwelling. If he had noticed it, or been effectively alerted to it, he would not have become so concerned about it after taking possession, to the point of consulting a contractor for advice in relation to it.
[68] I also accept that Mr. Langlois, as an experienced, qualified and conscientious home inspector, did notice the pronounced slope in the kitchen floor and verbally brought it, or attempted to bring it, to Randy’s attention. It was within his usual practice to do so and there would have been no reason for Mr. Langlois to fail to do so in this case. I am satisfied that Mr. Langlois conducted the inspection of the dwelling in a professional, thorough and conscientious manner and, given the obvious and pronounced slope in the floor, he would have made reference to it in his discussion with Randy in accordance with his customary practice. However, that does not end the matter.
[69] As indicated above, pursuant to the Standards, an inspector is required to report on significantly deficient systems and components and to report the reason why the system or component is significantly deficient and the inspector's recommendations to correct or monitor the reported deficiency. To "report" in this context refers, in my view, to the written report prepared by the inspector for the client. This ensures that any communication respecting a significant deficiency is effectively communicated to the client. It is not sufficient for a home inspector to simply verbally alert his/her client to the existence of a significant deficiency, but rather the Standards require inspector to report, not only on the existence of the deficiency, but also the reason for the deficiency and inspector's recommendation on rectification or monitoring.
[70] It is clear, in this case, that the existence of the pronounced slope in the kitchen floor, which was a significant deficiency and readily apparent on a visual inspection, was not "brought home" to Randy during the course of the inspection by means of the verbal communication made by Mr. Langlois. From that standpoint, Mr. Langlois, on behalf of Building Insights, failed in his duty to Randy to meet the standard of care that would be expected of an ordinary, reasonable and prudent home inspector in the same circumstances. The fact that Randy did not read the Inspection Report in its entirety, but only "skimmed" it does not, in my view, affect the question of whether there was a breach of duty for failure to effectively report the sloping floor in accordance with the Standards.
[71] The Inspection Agreement explicitly makes the point that the inspection is a "two-part system, the verbal survey and the written report." The attendance of the client at the inspection is strongly recommended in the Inspection Agreement as it is stated that non-attendance will limit the client's understanding of the true property condition. Communication to the client respecting important aspects of the condition of the property by the inspector is contemplated to be made both verbally, should the client attend on the inspection, and by means of the written report. The inspector’s duty is not only to detect significant deficiencies in the condition of the home, based on a general visual inspection of its readily accessible features, but also to effectively communicate their existence and significance to the client so that the client may make effective use of the information in his or her decision-making on whether to proceed with the purchase of the property as well as after taking possession. Where one aspect of effective communication, in this case the written report, is absent or lacking respecting a significant deficiency, the inspector will have failed in his or her duty to the client.
[72] In the event that I am wrong with respect to whether the sub-surface soil condition was a significant deficiency, it is necessary for me to consider whether, had it been a significant deficiency, Building Insights failed in its duty to detect it and bring it to the attention of the plaintiffs.
[73] At bottom, the plaintiffs’ position is that, Mr. Langlois having observed, or being in a position to observe, various conditions that were present in the dwelling, should have "connected the dots" (my terminology, not that of the plaintiffs) and been thereby alerted to the existence or possibility of differential settlement of the foundation, and should have brought that possibility to the attention of Randy and recommended that further investigations be carried or enquiries made. These conditions included the settlement of the front porch, cracking in the concrete driveway at the southwest corner of the dwelling, cracking in the brick veneer on the north and south sides of the dwelling and a cracked concrete window sill, all of which were pointed out by Mr. Langlois, as well as the sloping floor in the kitchen, door openings being out of plumb and the crack in the slab on grade floor in the crawlspace.
[74] It is noted that, during the course of his testimony, Mr. Teron, changed his theory of what was going on with the dwelling respecting differential settlement. His initial theory was that, due to the presence of inadequately compacted fill at the southwest corner of the dwelling as disclosed by the CMT geotechnical report, differential settlement occurred, resulting in the dwelling cracking or folding with downward deflection of the kitchen floor and the floor in the crawlspace toward the south wall. When he was cross examined and confronted with the fact that there was no cracking on the exterior veneer of the dwelling to a magnitude consistent with the deflection of the kitchen floor, he changed his theory to one by which the entire structure was pivoting or rotating as a unit rather than folding in the centre. When he was confronted with the fact that there was no deflection of the floor above the crawlspace corresponding with the deflected level of the crawlspace (which would be expected if the dwelling were pivoting as a unit), he was forced to effectively retreat from the theory that the structure was rotating as a unit and to acknowledge that there was a pronounced drop from the mid-point of the dwelling in the kitchen. That effectively left Mr. Teron with no theory which would consistently connect the observed conditions as pointing to the existence of differential settlement.
[75] There was no adequate explanation offered by the experts called by the plaintiffs for the fact that the floor above the crawlspace was essentially level (as measured by Mr. Smith and acknowledged by Mr. Teron) whereas the concrete slab on grade floor in the crawlspace had deflected downwards by approximately 2”. Since the floor above the crawlspace was resting on and supported by the stud wall which was in turn supported by the foundation wall, if the foundation had settled, one would expect a deflection of the upper floor to mirror that of the concrete slab in the crawlspace.
[76] It was acknowledged by each of the experts that the porch and the concrete driveway were each independent structures, not connected to the foundation of the dwelling. In my view, Mr. Teron did not adequately explain how cracking in the concrete driveway or settlement of the porch would be indicators of differential settlement of the foundation of the dwelling due to inadequate soils beneath the footing, rather than simply an indication of poor compaction of the backfill beneath the driveway and the porch.
[77] It is noted that the plaintiffs led no expert evidence from a registered home inspector, or other qualified expert, that an ordinary, reasonable and prudent home inspector in the same circumstances would have surmised or determined, from conditions which were readily apparent from a visual inspection of the dwelling, that differential settlement had occurred as a result of substandard soil conditions or was continuing or had the potential to do so.
[78] In the case of Krawchuk v. Scherbak 2011 ONCA 352 (CA) Justice Epstein held, at para. 125, that, to avoid liability in negligence, a professional must exercise the standard of care that would be expected of a reasonable and prudent professional in the same circumstances. This general standard, a question of law, will not vary between cases and there is no need for it to be established through the use of expert evidence. However, the translation of that standard into a particular set of obligations owed by a defendant in a given case is a question of fact. Justice Epstein went on to comment that external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standard, may inform the standard. Where a debate arises as to how a reasonable professional would have conducted himself or herself, recourse should generally be made to expert evidence. She further observed at para. 130 that, in general, it is inappropriate for a trial court to determine the standard of care in a professional negligence case in the absence of expert evidence.
[79] Justice Epstein held, at paras. 132-135, that while, as a general rule, it will not be possible to determine professional negligence in a given situation without the benefit of expert evidence, the authorities indicate two exceptions to this general rule.
[80] The first exception applies where it is possible to reliably determine the standard of care without the assistance of expert evidence. This will be the case only where the court is faced with non-technical matters or those of which an ordinary person may be expected to have knowledge.
[81] The second exception applies to cases in which the impugned actions of the defendant are so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard.
[82] It is clear that the second exception has no application to this case. It was not argued, nor could it be, that Mr. Langlois’ actions were in any way egregious.
[83] In my view, in reference to the question of the subsurface soil conditions and differential settlement of the foundation, this is not a case where the court is faced with non-technical matters or those which an ordinary person may be expected to have knowledge. This is amply illustrated by the difficulty that Mr. Teron had, as an experienced structural engineer, in formulating a consistent theory to explain what was going on with the dwelling, i.e. whether it was cracking or folding in the centre with downward deflection on the south side (which appeared inconsistent with the lack of corresponding cracking on the exterior and the lack of deflection of the roof line) or whether it was pivoting or rotating as a unit (which was inconsistent with the essentially level floor in the living area above the crawlspace).
[84] It is noted that Mr. Langlois testified that, although he noticed the significant slope in the kitchen floor and was of the view that it may affect the overall use or functionality of the kitchen space, he had no reason to suspect ongoing settlement, given the other indicators. He stated that he had inspected other homes, particularly older ones, with sloping floors, and, although he would have drawn Randy’s attention to it, he would not necessarily note it as a defective item.
[85] This is not a case of a home inspector failing to note a specific deficiency in a system or component which should have been apparent on a visual inspection. It concerns the exercise of judgment by the inspector in noting disparate clues and putting them together (“connecting the dots”) in order to draw a conclusion on the existence of a defect which would otherwise be hidden or obscured, namely inadequate subsurface soil conditions leading to differential settlement.
[86] I am not in a position to determine, without the assistance of expert evidence, that an ordinary, reasonable and prudent professional home inspector in the same circumstances would have “connected the dots,” consisting of the various conditions referred to above, including the sloping kitchen floor, in the face of seemingly inconsistent indicators such as a lack of corresponding exterior cracking, the absence of serious cracking of the foundation and the level condition of the floor above the crawlspace, and suspected or determined that differential settlement had occurred or was continuing due to substandard soil conditions.
[87] As indicated above, great emphasis was placed in the Statement of Claim on the failure of Mr. Langlois to enter the crawlspace to conduct a more thorough inspection of the floor and foundation walls in that space. I find, on a balance of probabilities, that there were obstructions, in the form of stored items, preventing, to some degree, physical entry into the space as otherwise he would have entered the space. However, the evidence does not establish the extent of the obstructions. As indicated above, paragraph 13.2 of the Standards provides that inspectors are not required to enter under-floor crawlspaces which are not readily accessible.
[88] Mr. Langlois did shine a flashlight around the crawlspace area to observe what he could of the foundation walls and indicated the method used to observe the crawlspace in his report as “partial entry.” Randy was aware that Mr. Langlois had not fully entered the crawlspace and evidently made no objection. In the absence of expert evidence, I am not able to make a finding on whether the approach followed by Mr. Langois fell short of steps or measures that an ordinary, reasonable and prudent professional home inspector would have taken, in respect of the crawlspace, in the same circumstances.
[89] In any event, I am not satisfied that the evidence has established that the crack and deflection of the slab on grade concrete floor in the crawlspace is associated with the substandard soil conditions found by CMT Engineering at the southwest corner of the dwelling (borehole #2) given its remoteness from that location, the lack of cracking in the foundation wall and the fact that the floor of the living space above is relatively level. All that has been shown is the concrete floor in the crawlspace has cracked and deflected downwards, but it has not resulted in water ingress or otherwise affected the functionality of the space for storage.
[90] The reasons set forth above, I find that, even if the sub-surface soil condition resulting in differential settlement of the foundation and dwelling was a significant deficiency, the plaintiffs have not satisfied the onus on them to prove that Building Insights was negligent in failing to detect it and to report it to them.
(d) did the plaintiffs rely, to their detriment, upon the representations made by Building Insights respecting the condition of the dwelling?
[91] I am satisfied, based upon the evidence that Randy, in particular, relied upon the representations made by Mr. Langlois on behalf of Building Insights respecting the condition of the dwelling in his decision to waive the condition in the Agreement of Purchase and Sale respecting satisfaction with a home inspection. Randy testified that he believed that Mr. Langlois had the necessary qualifications to tell him if there were problems with the dwelling and that he personally lacked such qualifications. I am prepared to infer that, had Randy been effectively alerted to the existence and extent of the sloping kitchen floor, he would not have waived the condition, at least without an adjustment to the purchase price to reflect the cost to rectify it.
[92] Even though Randy did not read the Inspection Report in its entirety, but merely “skimmed” it, prior to waiving the condition, as noted above, the Inspection Agreement explicitly characterizes the inspection as a "two-part system, the verbal survey and the written report." Even though Randy did not review the written report in detail, he did come away from attending on the actual inspection satisfied with what he had been told by Mr. Langlois about the condition of the dwelling. The evidence indicated that there was no substantive difference between what Randy had been told by Mr. Langlois verbally and what was reported in the written Inspection Report.
(e) What are the plaintiffs’ damages?
[93] The Plaintiffs led no evidence on the cost to rectify the slope in the kitchen floor, independent of a full stabilization of the foundation utilizing helical piers.
[94] Given my finding it has not been established that the risk of additional differential settlement has reached the level of likelihood or probability to support a finding that the soil conditions beneath the footings of the dwelling constituted a significant deficiency, I accept the evidence of Mr. Smith that invasive and destructive remedial measures involving extensive excavation, stabilization of the foundation system and jacking up of the foundation would not be justified and recommended in order to level the kitchen floor. Mr. Smith estimated the cost to re-level the kitchen floor to a more level and aesthetic condition in a non-invasive fashion would be approximately $12,000.00. He described this estimate as including removal of the floor tile, removal and reinstallation of the cabinets, installation of a new tile floor in a mortar bed and associated trim and fenestration repairs. Although Mr. Teron was of the view that installing a new tile floor in a mortar bed would not be recommended as it would add additional load, I am satisfied with Mr. Smith’s response that there are light-weight materials available which would address this concern.
[95] Although the basis upon which the estimate of the cost to re-level the kitchen floor was not detailed by Mr. Smith, in keeping with the principle laid down in the case of Wood v Grand Valley Railway (1915), 1915 CanLII 574 (SCC), 51 S.C.R. 283 (SCC), I should do the best that I can to determine the damages based upon the evidence before me, even where it is not possible to calculate them with mathematical precision or accuracy.
[96] Given that the estimate was offered by Mr. Smith, who is a structural engineer and not a contractor, that the estimate is general in nature, and that it was offered some fifteen months prior to trial, I would add a factor of 10% to account for an increase in costs since the date of the estimate and a further 25% for contingencies, for a total of $16,500.00 plus HST, totalling in all the sum of $18,645.00.
[97] In the event that I am in error with respect to the liability of Building Insights respecting the soil conditions and differential settlement, it would be useful for me to determine the damages associated with rectifying the condition of the dwelling associated with those matters.
[98] As indicated above, Mr. Wyga provided an estimate of costs for rectification work consisting of removal of the front porch and driveway, excavation on three sides of the dwelling and stabilization of the foundation by installation of 24 helical piers, backfilling and compacting following installation of the piers, re-pouring the foundation for the front porch and re-pouring the front porch and driveway and installation of a new railing on the front porch, in the sum of $89,900.00 plus HST. This price includes design and engineering services. Mr. Wyga also provided estimates for additional work, if considered to be necessary, as described above.
[99] Mr. Smith testified, in reference to Mr. Wyga’s estimate, that in order to stabilize the foundation to prevent additional differential settlement, it would not be necessary to stabilize the front and rear walls, as the floor joints of the dwelling bear on the north and south side walls and not the front (west) and back (east) walls. It would only be necessary to provide additional support to the load-bearing wall carrying the weight of the structure. If helical piles were installed only on the south (driveway) side wall, it would not be necessary to remove the front porch.
[100] Mr. Smith provided an estimate prepared by Burke’s Restoration Inc. an experienced contractor with which he had previously worked utilizing helical pile systems, based upon installing up to 10 helical piers. Mr. Smith described this as a conservative number, as site-specific pier spacing is typically farther apart than anticipated in the estimate. The final number of piers to be installed would have to be determined in the field following excavation and testing. The total cost, based upon installation of 10 helical piers, was estimated at $21,280.40 for the foundation work, including installation of helical piers, and $12,551.00 for removal and replacement of the concrete driveway, for a total of $33,831.40 plus HST, totalling in all $38,229.48.
[101] Mr. Smith recommended strongly against jacking up the foundation as it would result in significant damage to the exterior and interior of the dwelling.
[102] Mt. Wyga testified that his firm had never previously worked with helical piers (although he had worked with different types of piers). He relied upon information provided by a subcontractor experienced in installing helical piers EBS. No one from EBS was called to testify and, to Mr. Wyga’s knowledge, no one from EBS attended at the site.
[103] Neither Mr. Koopmans’ report, nor that of Mr. Teron, specified that helical piles should be installed on the front and back sides of the dwelling as well as on the south side. Mr. Wyga did not consult with either Mr. Koopmans or Mr. Teron, but only read their reports, in order to prepare his estimate. He testified that he decided, without input from the engineers, to seek a quote from EBS based upon installation of helical piers on three sides of the dwelling.
[104] Mr. Wyga testified further that he was under the assumption that the project could involve lifting or jacking the house to a level position and he therefore provided a price for that. The estimate for replacing 30” of foundation wall was based on the possibility that the foundation wall was cracking, which could only be determined after it was uncovered.
[105] Mr. Teron, when asked to comment on Mr. Wyga’s proposal to install 24 piers on three sides of the dwelling, responded that it “appears reasonable.” He was not called in reply to respond to Mr. Smith’s opinion that, because the west and east foundation walls were not load-bearing, it would not be necessary stabilize them with helical piers.
[106] In light of the foregoing, I prefer the approach proposed by Mr. Smith, with the estimate provided by Burke’s Restoration, over that of Mr. Wyga. In the event that it is found that Building Insights has liability to the plaintiffs in reference to the foundation, in addition to the sloping kitchen floor, I would determine the total damages as follows:
Stabilization of south wall with ten helical piers - $21,280.40
Removal and replacement of the concrete driveway - $12,551.00
Levelling of kitchen floor and associated work - $16,500.00
Subtotal $50,331.40
HST $6,543.08
TOTAL $56,874.48
[107] I would not apply any adjustments for price increases and for contingencies to the Burke’s Restoration estimate, as it is a conservative estimate and there is a real possibility that fewer helical piers will be required than quoted upon.
Disposition
[108] For the reasons set forth above, I find in favour of the plaintiffs and award damages against the defendant Building Insights Inc. in the sum of $18,645.00 inclusive of HST.
[109] Before concluding, I should comment briefly upon submissions made by both counsel in closing argument concerning the dire consequences that would be suffered by their clients should their respective positions at trial not be upheld. These types of submissions are not relevant or helpful and indeed, if I may say so, are not fair to the process. The court’s proper role is not to be swayed by suggestions of dire consequences to a party from a particular decision, but to listen to and consider the evidence led at trial, make findings of fact consistent with the evidence and to apply pertinent legal principles to those factual findings in order to make a fair and just determination of the dispute between the parties on its merits.
[110] Because these submissions were advanced by counsel, it is incumbent on me to assure each of the parties that my decision has not been influenced by any improper consideration of the relative consequences which may possibly accrue to the parties as a result of it.
Costs
[111] If the parties are unable to agree on costs, they may file written submissions of no more than five pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 30 days. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street 7th Floor, Kitchener Ontario N2H 0A7. If no submissions are received within 30 days, the parties will be deemed to have settled the issue of costs as between themselves
D. A. Broad J.
Released: September 9, 2013