COURT FILE NO.: 11-50689

DATE: 2013/11/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Rocksolid

Douglas W.J. Smyth and Jean-François Laberge, for the Plaintiff

Plaintiff

– and –

Dino Bertolissi, Stephanie Bertolissi and The Toronto-Dominion Bank

Christopher A. Moore, for the Defendants

Defendants

A N D B E T W E E N:

Dino Bertolissi and Stephanie Bertolissi

Plaintiffs by Counterclaim

-and –

Rocksolid, Jason Currie and Darryl Currie

Defendants to the Counterclaim

Christopher A. Moore, for the Defendants and the Plaintiffs by Counterclaim

Douglas W.J. Smyth and Jean-François Laberge, for the Plaintiff and Defendants to the Counterclaim

HEARD: April 15 to 18, 2013 and

June 26, 2013 (Ottawa)

REASONS FOR DECISION

R. SMITH J.

Overview

1Rocksolid claims $19,058.89 for the balance it alleges is owing for installing masonry stonework on Dino Bertolissi (“Dino” or “Mr. Bertolissi”) and Stephanie Bertolissi’s (“Stephanie” or “Ms. Bertolissi”) new residence. The total initial estimate was $43,064.50 and they have been paid $23,000.

2The defendants, Dino Bertolissi and Stephanie Bertolissi, are the owners of the lot located at 14 Mion Court in the City of Ottawa on which they constructed a new home in 2010. Dino acted as the general contractor and entered into an agreement with Rocksolid to install the stone facade around their new home.

3The Bertolissis have counterclaimed for $17,515 for the cost to complete the remaining stonework on their home after Rocksolid stopped work on the jobsite, plus the sum of $46,561 for the cost to repair alleged deficiencies in Rocksolid’s masonry stonework.

4This case raises the issue of whether an owner or general contractor must give a contractor, (“Rocksolid”), an opportunity to correct any deficiencies before they are able to recover the cost of correcting the deficiencies incurred by hiring another contractor.

Issues to be Decided

5The following issues must be decided:

Issue #1 - What were the terms of the contract between Rocksolid and the Bertolissis?

Issue #2 - How many square feet of masonry stone did Rocksolid install on the Bertolissis’ residence?

Issue #3 - How many square feet of masonry stone remained to be installed on the Bertolissis’ residence when Rocksolid stopped work on the worksite on November 24, 2010?

Issue #4 - Who caused the delay? Did Rocksolid leave the jobsite on September 27, 2010 to work for another more important customer, or did Dino Bertolissi fail to ensure that a sufficient quantity of stone was delivered to the jobsite by the above date?

Issue #5 - Did Rocksolid repudiate the contract by leaving the jobsite and by refusing to complete the installation of the masonry stonework on the Bertolissis’ home, or did Dino Bertolissi repudiate the contract by refusing to pay for the additional cost of heating the walls and by ordering Rocksolid to leave the jobsite on November 24, 2010?

Issue #6 – Were the owners and general contractor required to give Rocksolid a reasonable opportunity to correct the deficiencies, before they are able to recover the cost of correcting the deficiencies by another contractor? If so, did the Bertolissis fail to mitigate their damages?

Issue #7 – What amount, if any, is owing by the Bertolissis to Rocksolid on their claim?

Issue #8 - What amount, if any, is owing by Rocksolid to the Bertolissis on their counterclaim?

Background and Findings of Fact

6Dino Bertolissi and Stephanie Bertolissi are the owners of a property located at 14 Mion Court in the City of Ottawa. During 2010 they built a 5,500 square foot home on this lot. Dino Bertolissi is a flooring contractor who installs flooring in large commercial buildings. Stephanie Bertolissi is an interior designer, has graduated with a Bachelor’s of Administration and she is also qualified as a Cordon Bleu chef.

7Jason Currie (“Jason” or “Jay”) and Darryl Currie (“Darryl”) co-own Rocksolid which carries on the businesses of landscaping, masonry, and snow removal during the winter months. Jason Currie is also a full-time firefighter. He is involved in the quotation and marketing aspects of the masonry division. The masonry division of Rocksolid employs three masons and labourers. Jason Currie is now 37 years of age and has been a qualified mason since the age of 18.

8Darryl and Jason Currie share responsibility for supervising the masons who work on the jobsites. Darryl Currie is also a co-owner, operator and partner in Rocksolid. He is involved in the administration, payroll and materials, issuing invoices and generally meets with the customers to sign the contracts.

9In early April of 2010, Dino contacted Rocksolid and requested a quotation for the installation of stone on a new home he was building at 14 Mion Court in the City of Ottawa. Dino gave him a set of architectural drawings for the home and based on these plans Jason prepared an estimate for the work to be performed. Darryl prepared the contract. Dino agreed during his evidence at trial that he acted as the general contractor for the construction of his house.

10In their evidence at trial, the parties largely agreed on the work that had to be completed before the masonry stone could be installed on the walls of the house. The framing had to be completed, the house had to be Tyvek’d, the windows and doors were to be installed, hot water and electricity were to be available to the masons, and all required materials were to be brought to the building site by the owner, including all required stone, steel, angle iron, blocks and cement. Jason testified that Dino Bertolissi was responsible for ordering and paying for all required materials, including the stone, steel and the cement.

11Dino agreed that he was responsible for ordering and paying for the stone and for ensuring that the required quantity of stone was delivered to the jobsite at 14 Mion Court. He also agreed that he was responsible for paying for the cost of any steel required to support the stone walls over windows and doorways.

Issue #1 - What were the terms of the contract between Rocksolid and the Bertolissis?

12The parties agreed on a price for installation of the stone of $10.50 per square foot plus the amount of $1,750 for the installation of seven stone window arches at $250 each. The installation of 3800 square feet of stone at $10.50 per square foot resulted in an estimate cost of $39,900 plus $1,750 for the arches for a total contract price of $41,650 plus $5,414.50 in HST. The total estimated contract price was $47,064.50. Mr. Bertolissi paid a deposit of $3,000 on April 11, 2010 leaving a balance owing of $44,064.50 on the contract.

Commencement Date for Installing Stone

13Darryl attended at the Bertolissis’ previous residence to have the contract signed on or about April 11, 2010. Darryl and Jason testified that they were advised by Dino that the estimated start date for installation of the stone was to be the beginning or middle of June 2010. The contract does not specify a commencement date.

14Mr. Bertolissi testified that there was no discussion of a start date in mid-June with either Darryl or Jason, only that he was to give Rocksolid a call a couple of weeks before he was ready for the stone to be installed. He testified that it would have been impossible for his house to be ready for the stone on that date as the foundation, walls and framing, windows and doors had to be installed, by mid-June of 2010. Dino testified that Rocksolid agreed with this arrangement, because they said they always had work to do. Dino testified that the windows were installed in June or July of 2010. He could not remember when the doors were installed but testified that all three replacement windows were installed before the stone was installed around them.

15I accept Jason and Darryl’s evidence that the estimated commencement date discussed was mid-June of 2010 because I find they were both credible witnesses and Dino was evasive in his testimony and was not a credible witness. It would be very important for a stone mason contractor with several employees to have an estimated commencement date in order to schedule work during the summer months, especially for a job requiring 30 working days for his crew, and good weather in the relatively short summer months. As a result, I accept Jason and Darryl’s evidence that an estimated commencement date was discussed as this accords with the preponderance of probabilities to a practical and reasonably informed person.

16While I find that Jason and Darryl’s evidence was more credible, this issue is not important because Rocksolid ultimately commenced work on August 12, 2010 when the site was ready for the installation of the stone. At this time there was still sufficient time to complete the work during good weather, provided the required quantity of stone had been delivered to the site and the masons had not been forced to leave the jobsite on September 24, 2010 because of a lack of stone.

Return of the Architectural Plans

17Both parties agree that Rocksolid was provided with a set of architectural plans for the new home and that these plans formed the basis of its initial estimate. Dino testified that Rocksolid never returned its copy of the plans, whereas Darryl testified that he returned the set of plans to the Bertolissis at the signing of the contract on April 11, 2010.

18Neither party produced a copy of the architectural plans at trial. Mr. Bertolissi offered explanation that after his home was constructed, they had a flood in their basement and lost all of the documents related to the construction of their home, Therefore as a result he was unable to produce the timesheets or any of the building plans or invoices related to the cost of correcting the alleged deficiencies in Rocksolid’s work.

19On this issue, I accept Darryl’s evidence who testified that he returned Rocksolid’s copy of the architectural plans to Mr. Bertolissi when the contract was signed. I also find that Mr. Bertolissi, as general contractor and owner of the home, would have had several copies of architectural plans and that he could easily have obtained another copy from the architect or engineer who prepared the plans at a nominal cost. I draw an adverse inference from the fact that Mr. Bertolissi failed to produce a copy of the architectural plans for his own residence, which he easily had the ability to produce. I further find that it is highly unlikely that all of the invoices, time sheets, receipts and plans would be irretrievably destroyed by a flood in the basement, and that none of the documents could have been dried out and recovered, even in a somewhat damaged state.

Were all of the windows and doors installed before Rocksolid commenced work?

20Both Darryl and Jason testified that when they installed the stone on the rear of the garage and house, three of the larger replacement windows and two doors had not been installed. They testified that they proceeded to install the stone on the walls around the windows and door spaces, leaving additional space around the three windows and two doors to allow for the installation of the replacement windows. This was their explanation for the spaces in excess of one quarter to three eights of an inch gaps around these windows and doors. Jason testified that once the replacement windows, doors and all of the stone had been installed, Rocksolid planned to review the work to identify deficiencies, and adjust gaps around the windows and doors to the correct specifications. He testified that this work would have been completed at no charge to the Bertolissis.

21Mr. Bertolissi testified that Rocksolid proposed to fix the gaps around the three windows and two doors by installing aluminum flashing, Mr. Bertolissi found that proposal unacceptable. Jason denied having made that proposal and testified that he proposed to adjust the stone to the correct gap size.

22Both Dino and Stephanie Bertolissi testified that they had changed their minds after the windows they had originally ordered were installed and ordered three larger windows. However, they testified that these replacement windows were installed before Rocksolid commenced the installation of the stone on August 12, 2010. Luc Brisson, the window installer, testified that he spent two days installing the windows sometime in July of 2010 and that all of the windows were installed before Rocksolid commenced installing the stone on the walls.

23The photo in Exhibit 1, Tab 1D, picture 3 shows that Rocksolid was installing stone on the walls of the rear of the house before the larger replacement windows were installed. This photo confirms that Rocksolid was in the process of installing the stone in the areas of the two windows identified on picture number 3 of Exhibit #1. This photo does not show that the stone had been installed around the rear window, however it corroborates Jason’s evidence that the windows had not been replaced and that Rocksolid was installing stone in the area where the larger windows were to be installed.

24The above photo contradicts the evidence of Mr. Brisson. The photo shows that the replacement of the larger window at the rear of the home had not been completed by mid-August 2010. Rocksolid had commenced work on August 12, 2010 and had installed stone on the side of the garage, the rear of the garage, adjoining the side of the house and part of the rear wall of the house. I infer that this would have taken Rocksolid approximately one week, bringing the date of the photo to approximately August 19, 2010.

25Mr. Bertolissi disputed whether the appropriate sized door was installed before the stone was installed. Again, I prefer the evidence of Jason and Darryl Currie over that of Mr. Bertolissi as I found Mr. Bertolissi to be evasive while giving of his evidence and I find that he was untruthful in his evidence concerning the cost of correcting the deficiencies, as his evidence was contradicted by the mason who performed the repair work.

26However, my acceptance of Jason’s evidence that the larger windows and doors had not been installed before the stone was installed is of no legal significance, because when Rocksolid decided to proceed in this manner it assumed the risk and responsibility to correct any deficiencies. Rocksolid was aware that the windows were going to be replaced and that an adjustment would have to be made to ensure that the correct spacing existed between the stone and the windows. As a result any gap that exceeded the specifications would have been a deficiency in their workmanship. Jason and Darryl Currie agreed that any gaps that exceeded the one quarter to three eights specification were a deficiency. They also testified that they assumed responsibility for correcting the deficiencies to ensure that the proper sized gap existed between all of the windows and doors on the Bertolissis’ residence.

Disposition of Issue #1

27To summarize, based on my findings of fact above, I find that the terms of the contract were as follows: a) that the terms of the contract were as set out in the written contract, dated April 11, 2010. Rocksolid’s estimate of $47,064.50 was based on Mr. Bertolissis’ architectural plans Rocksolid estimated that 3,800 square feet of stone would be installed on the walls at a price of $10.50 per square foot. In addition, seven stone arches, at $250 per arch, were to be installed for a total cost of $1,750; b) that Rocksolid returned their copy of his architectural plans to Mr. Bertolissi when the contract was signed for the reasons previously given; c) I draw an adverse inference against Mr. Bertolissi for failing to produce a copy of the architectural plans, which he paid for and could reasonably have obtained from the architect or drafter of said plans, and for failing to produce water damaged copies of his contracts, time sheets, invoices, receipts, and delivery slips related to the construction of his house; d) that the commencement date for the installation of stone was discussed and estimated at mid-June of 2010. This finding is not important as Rocksolid agreed to commence the work on August 12, 2010 without any amendment to the terms of the contract and when there was sufficient time to complete the work in the remaining months before it became too cold; e) that three windows and two doors were not completely installed with the correct sizes when Rocksolid installed the stone around these openings. However, again this is not an important finding as Rocksolid assumed the obligation to repair any deficiencies and acknowledged that any gaps exceeding the proper spacing were deficiencies which they were responsible to correct; f) that the installation of the stone was to be done in a good workmanlike manner; and g) that Mr. Bertolissi was responsible for the ordering, payment and delivery of the required amount of stone to the jobsite. Mr. Bertolissi was also responsible for payment of any steel required to support the stone over windows and doorways, and for cement and blocks. This finding is based on Mr. Bertolissi’s, Jason’s and Darryl’s evidence which was not contested.

Issue #2 – How many square feet of masonry stone did Rocksolid install on the Bertolissis’ residence?

28The parties disagree on the number of square feet of stone that had to be installed on the Bertolissis’ residence. In the written contract, Rocksolid estimated that 3,800 square feet of stone would be installed on the Bertolissis’ residence. The contract signed by the parties stated that Rocksolid based its measurements on Mr. Bertolissi’s architectural plans.

29Mr. Bertolissi testified that he used a software program to calculate the area of his residence to be covered with stone. He calculated a requirement of 3,389 square feet, not 3,800 square feet as estimated by Rocksolid, Mr. Bertolissi testified that he also calculated that 643 square feet of stone remained to be installed on his residence when Rocksolid stopped work on November 24, 2010. Using his estimates, only 2,746 square feet (3389 square feet minus 643 square feet) of stone was installed on his residence by Rocksolid. Mr. Bertolissi did not provide any details about the nature of the software program he used and did not provide any evidence about the accuracy of the software program he used or make any comparison with the measurements taken by Rocksolid from the architectural plans.

30As previously held, I draw an adverse inference against Mr. Bertolissi for failing to produce a copy of his architectural plans at trial. I find that his explanation for throwing out all of his invoices, delivery slips, receipts, architectural plans and all documents related to the house construction because of a flood in his basement, without attempting to recover any of the documents, is not credible and does not accord with the preponderance of probabilities which a practical and informed person would recognize as reasonable in these circumstances.

31Darryl Currie testified that before Rocksolid left the worksite he measured the area of the house on which the masonry stone had been installed. He calculated that Rocksolid had installed 3,226 square feet of stone on the exterior of the house. I found Darryl to be a credible witness and accept his calculations as they were based on his actual measurements of the area of stone on the Bertolissis’ residence.

32I find that Darryl’s actual measurements were more reliable than the software computer program allegedly used by Mr. Bertolissi in his calculation of the area of stone installed on his residence. If Mr. Bertolissi had produced a copy of his architectural plans the total area to be covered with stone could have been verified, but this was not possible without a copy of the plans.

Disposition of Issue #2

33I have accepted Darryl Currie’s evidence and find that Rocksolid installed 3,226 square feet of stone on the Bertolissis’ residence.

Issue #3 – How many square feet of masonry stone remained to be installed on the Bertolissis’ residence when Rocksolid stopped work on the worksite on November 24, 2010?

34Darryl calculated that an area of 589 square feet of stone remained to be installed when Rocksolid left the jobsite. Mr. Bertolissi calculated that 643 square feet of stone remained to be installed when Rocksolid left the jobsite. The square footage of stone remaining to be installed as calculated by both parties is almost identical.

35I accept Darryl Currie’s calculations that there were 589 square feet of stone remaining to be installed when Rocksolid left the jobsite on November 24, 2010 based on his actual measurements on the house before Rocksolid left the jobsite. I prefer Darryl’s evidence of his measured area over that of Mr. Bertolissi who relied on some computer program, which he did not describe in any detail in his evidence and his failure to produce architectural plans. The area measured by Darryl, of 589 square feet, is almost identical to that calculated by Mr. Bertolissi of 643 square feet. I find that Darryl Currie’s measurements and his evidence were more reliable than that of Mr. Bertolissi for reasons given above.

Disposition of Issue #3

36I find that 589 square feet of stone remained to be installed on the Bertolissis’ residence when Rocksolid stopped work on November 24, 2010.

Issue #4 – Who caused the delay? Did Rocksolid leave the jobsite on September 27, 2010 to work for another more important customer, or did Dino Bertolissi fail to ensure that a sufficient quantity of stone was delivered to the jobsite by the above date?

37Darryl and Jason Currie testified that they commenced installing stone on the Bertolissis’ residence on August 12, 2010 and that they ran out of the required stone on September 24, 2010. They both testified that Dino caused the delay by failing to ensure that a sufficient quantity of stone was delivered to the jobsite on September 24, 2010 to allow the masons to continue to install stone.

38Dino agreed in cross-examination that he initially only ordered one half of the required quantity of stone but testified that Rocksolid decided to leave the worksite to work for more important customers and only returned to start work again in early November of 2010. As a result, he testified that Rocksolid was responsible for causing the delay.

39Rocksolid started installing stone on the wall of the garage of the Bertolissis’ residence on August 12, 2010. The Bertolissis had not wanted Rocksolid to start installing stone on August 12, 2010 because they wanted them to wait until Mr. Steve Lacelle, the stone salesman for Arriscraft stone, returned from his holidays.

40An email was sent on August 17, 2010 confirming that Jason had met with Steve Lacelle and taken down the stone around and under the window that Stephanie had been upset about. Jason admitted that Stephanie was upset with just cause, and stated that he rebuilt it that morning. He eliminated the cuts under the sills and laid larger size stones around the sills to draw less attention to the small square stones on the top of the sill next to the candle (vertical stone). He stated that he was happy with the way it looked “now and hope you will also.”

41On August 17, 2010 an email was sent from Jason Currie to Stephanie where he proposed the design for the arches. Jason stated “I am very pleased to hear that you approve! Forward moving from this point!” Later that day Stephanie sent an email to Jason stating, “I just came by with some banana bread for the guys and I saw where you fixed it and I am very pleased, thank you.” I infer from this email that Stephanie was satisfied with the way Rocksolid had rebuilt the window and cleaned things up along the wall that were brought to his attention by Steve Lacelle, as set out in the email dated August 17, 2010.

42Dino Bertolissi testified that he relied on the advice of Steve Lacelle and ordered only half of the quantity of stone that was required for the complete house. Dino did so in order to reduce his costs in building the house. Mr. Bertolissi also attempted to arrange credit terms for the delivery of the stone from Merkley’s Supply. Merkley’s representative handling this order was Mike Maheu. Jason testified that Merkley’s policy was that they had to be paid before the stone would be delivered to the jobsite.

43An email was sent by Darryl Currie to Dino Bertolissi and a copy to Jason Currie and Mike Maheu stating: “Hey Dino, Would you mind giving Mike a call he’s trying to put the invoice through for the rest of your stone ... Thanks, Darryl Currie ...” Jason Currie then sent an email to Mike Maheu stating: “Hey buddy. Our customer was reminded today to call you and settle up. I need to switch out some 8 & 11’s for 5 & 2’s in the ivory. Can you give me a shout pls...” Darryl and Jason testified that Mr. Maheu was having a difficult time getting Mr. Bertolissi to pay his account for the stone. Jason sent this email to advise that he had encouraged and reminded Mr. Bertolissi to call Merkley and settle up. He also asked Mr. Maheu to exchange some of the different sizes of stone, eight inch and eleven inch stone, with the five inch and two inch stones. In addition to different sizes there were also three different colors of stone being installed by the masons.

44On September 10, 2010 at 6:53 a.m. Mike Maheu emailed Jason and Darryl stating:

... I am really getting worried about this [Bertolissi] guy. Its been a month now and Lorne is now breathing down my neck about it. I don’t know this guy at all. The only reason he has stone at his place at all is because of RockSolid, and your relationship with Merkley. Lorne is already talking about taking action. He hasn’t responded to my e-mails, can you get him to square this up. He still owes Merkley $15635.43. Thanks Mike”.

45I infer from the email exchange that Jason reasonably believed that Dino had not paid for the stone upfront and had not paid for the stone in a manner that was acceptable to Merkley. This non-payment related to Mr. Bertolissi’s order for only one half of the required stone.

46Dino, Jason and Darryl all testified that Dino, as the general contractor, was responsible to ensure that an adequate quantity of the correct size stone was delivered to the worksite as needed by the masons, as they worked on installing stone on his house.

47On September 10, 2010, Jason Currie replied to Mike Maheu “I will push harder. Like I said, I told him I needed more stone and there was no way it was showing up until he squared up with you guys.” Mike Maheu from Merkley responded later, saying: “Thanks Jay, just mention to him to call. Its not your job to hunt him down...”

48On September 10, 2010 at 12:51 p.m., Mike Maheu emailed Jason, “Its Paid Whoo Hoo.” Later, on September 10, 2010 Jason Currie replied, “Good! I had Darryl tell him I was going to pull off his job and start another. And wouldn’t be back until things were square. Have a great weekend dude! Cheers.” On September 10, 2010 Jason Currie emailed Mike Maheu, “No worries. Like I said, he has the coin. We’ll get it from him. He’s just very laid back. Nothing seems to be a high priority. We’ll just change his mind on that when it comes to paying you and me.”

49On September 14, 2010 at 7:48 a.m. Jason emailed Mike, “Top of the morning to ya! Now that we got Mion Crt settled up, can we get that stone exchange underway asap? Let me know the plan.” Later at 7:58 a.m. on September 14, 2010, Mike Maheu replied “Good Morning Jay, what quantities are coming back and how much do you need to go.” At 9:52 a.m. Jason replied “Hey Mike, I think if I send back: 1- pallet of the 11’s & 4- pallets of the 8s That’ll be good. In return I would like: 2- pallets of the 2s and 3- pallets of the 5s. All stone switched and received is the Ivory Colour. Does the sqft equal out in the exchange? If there is a difference, send me the balance in 5’s or if it goes the other way bill Dino the customer.” At 12:58 Maheu responded to Jason stating “Hey Jay I can have it there tomorrow, Dino will owe me $691.70. I will have to process first before I can release. Lorne won’t allow the transaction to complete unless paid. Sorry about this. I don’t want you to be held up.”

50The series of emails confirm Jason’s evidence of his understanding that Mr. Bertolissi had not paid Merkley for the first half of the stone before it was delivered and that Merkley had had difficulty getting paid by Dino. It was also Jason’s understanding that Merkley was insisting on being paid in cash before any further stone was delivered to the Bertolissis’ property. I further find that Rocksolid was running out of certain sizes of stone as of September 14, 2010 and was proposing to exchange some of the stone in order to allow its employees to continue installing stone.

51On September 24, 2010 at 12:02 p.m. Darryl emailed Mike Maheu stating: “Hey Mike, we need some more stone for 14 Mion. 1 pallet of 12, 4 pallets of 8, 3 pallets of 2, 6 pallets of 5 all in ivory white also in angle iron we need 75, 45, 45, 83. Could you please send out 40 sills as well. We need this asap please so if there is a spot for Monday that would be great. Let me know.”

52On September 27, 2010 at 6:45 a.m. Mike Maheu wrote to Darryl: “Hey Darryl, Just got this, did someone take care of this for you Friday?” On September 27, 2010 at 6:54 a.m. Darryl wrote to Mike Maheu, “Morning Mike, no it has not been taken care of yet could you please do so. Can you let me know when it’s going out. Thanks.”

53I find that these emails confirm Jason’s evidence that by September 27, 2010 Rocksolid had run out of stone because an insufficient quantity of stone had been delivered to the 14 Mion Court jobsite for the masons to continue with the installation.

54On September 27, 2010 Jason wrote to Mike Maheu, “Whats the suggested waste for Laurier?” At 8:05 a.m. on the same day Mike Maheu replied as follows: “It varies on the job. You want nice, you waste a little more. Want it done slap it on … Seriously, I’ve seen up to 10-15% waste. They say 5%. I’ve never seen it. We are short on 5”. Need to find out from Jen when to expect it.” Later that day at 12:34, Jason replied to Mike Maheu, “Thanx bud, keep me posted on the fives. Cheers.”

55On October 4, 2010 Steve Lacelle sent an email to a number of individuals at Merkley including Mike Maheu and Jennifer Siba stating: “Jen, we will have 5 skids of LAU11 available for pick up in St. Etienne des Grès tomorrow. Please send 3 skids to Dino Bertolissi (Rock Solid Mason) Check with Mike Maheu. ... Both of these jobs are stopped because of 11” stone. Please send ASAP. Thank you, Steve Lacelle”.

56Dino Bertolissi testified that it was not the lack of stone or the fact that he only ordered half of the quantity required for his house that caused Rocksolid to leave the worksite on September 27, 2010, but rather he testified that Rocksolid decided to leave the worksite in the middle of his project to go to work on another job that was more important than his.

57Mr. Bertolissi’s evidence was denied by both Darryl and Jason Currie who testified that the reason they were forced to leave the jobsite was because Dino had failed to ensure that they had a sufficient quantity of stone to install. I accept Jason and Darryl Currie’s evidence that they were forced to leave the 14 Mion Court jobsite because Dino Bertolissi failed to arrange and order a sufficient quantity of stone to allow the masons to complete the installation of stone. The email exchanges are consistent with Jason and Darryl’s evidence.

58I find that Mr. Bertolissi’s evidence was not credible on this point. His evidence was contradicted by the email exchanges indicating that Rocksolid was running out of stone in the middle part of September 2010 and finally by September 27, 2010 they had no further stone to install. I also find that it would be very inefficient for Rocksolid to tear down their scaffolding and to move worksites in the middle of a project and that acting in this manner would not accord with the preponderance of probabilities to an informed practical person.

Disposition of Issue #4

59As a result, I find that Dino Bertolissi was responsible for causing the delay on September 27, 2010 as he failed to ensure that a sufficient quantity of stone was delivered to the jobsite. Mr. Bertolissi’s failure caused Rocksolid to leave the jobsite until a sufficient quantity of stone was delivered, which did not occur until after November 3, 2010 and in any event by November 11, 2010.

Issue #5 – Did Rocksolid repudiate the contract by leaving the jobsite and by refusing to complete the installation of the masonry stonework on the Bertolissis’ home, or did Dino Bertolissi repudiate the contract by refusing to pay for the additional cost of heating the walls and by ordering Rocksolid to leave the jobsite on November 24, 2010?

60On October 4, 2010 Steve Lacelle asked Mike Maheu by email if he was sending the LAU11 white to Dino tomorrow and to let him know. I also infer from the exchange of emails that Merkley Supply, was refusing to deliver the stone required to the Bertolissis’ residence without being paid upfront and that Mr. Bertolissi failed to make the necessary arrangements to ensure that Merkley was paid before they delivered more stone to the Bertolissis’ jobsite.

61Mr. Bertolissi failed to arrange for any stone to be delivered to the site throughout the month of October 2010. On November 3, 2010 Jason Currie emailed Mike Maheu and stated: “sent an email earlier about Mion Crt status? Has he paid? Is it on its way? Or already there?” Later that day Maheu responded to Jason, “Never got that e-mail. Mion Crt status is Not Paid yet. Material is coming in tomorrow. Steve said it was a special run… I don’t even want to know. So Jen order everything on that Quote and is tagg with Mion Crt. So no it is not on sight.” On November 3, 2010 at 6:20 p.m. Jason responded to Mike Maheu, “No worries. Interesting. Steve can’t be comp’n it?? Anyhow, can you let me know when it’s heading to site?”

62Based on the above emails and Jason and Darryl’s evidence I find that as of November 3, 2010,Mr. Bertolissi had still not ensured the delivery of the required stone to the jobsite to allow Rocksolid to continue to install the stone.

63On November 11, 2010 Rocksolid returned to the jobsite and recommenced installing the stone on the Bertolissis’ house. When Rocksolid returned to the site on November 11, 2010 it discovered that Dino had not arranged for the delivery of the amount of stone required to complete the project. On September 24, 2010 Jason had advised Mr. Bertolissi of the quantity and sizes of stone that were required to complete the project. Mr. Bertolissi only ordered approximately half of the stone that Jason had advised him was required to finish the work. This amount was delivered to the jobsite by November 11, 2010.

64Mr. Bertolissi agreed in testimony that he had not ordered the quantity of stone that Jason Currie had requested. Instead he decided to follow Steve Lacelle’s advice to order a smaller quantity in order to reduce his costs. Jason testified that by November 11, 2010 the weather had become cold and rainy. On several occasions the mortar started to freeze requiring Rocksolid to purchase additives to add to the mortar. Their productivity was reduced due to the reduced daylight and the inclement weather.

65Rocksolid continued to install stone on the Bertolissis’ residence from November 11, 2010 to November 19, 2010 when they ran out of certain sizes of stone for the second time. No stone was delivered between November 19, 2010 to November 21, 2010. During this period, Jason Currie and his employees re-attended the jobsite. Again, on the morning of November 24, 2010 there was insufficient stone available to install and the weather had become cold causing the mortar to freeze.

66Prior to November 24, 2010 Jason had been cutting stone for the arches on site and laying out arches which is shown in the photographs. At this point, Jason testified that he had a conversation with Stephanie and Dino in the garage. He advised them that the mortar was now freezing. He suggested that Rocksolid return in the spring and finish the project with no additional cost to the Bertolissis. Stephanie insisted that the job be completed immediately. Stephanie was not happy with the job not being completed immediately and she left the meeting.

67At this point Jason testified that Dino became very angry and insisted that Rocksolid remain on the jobsite and complete the installation of the stone at the agreed price and stated that if they left the job they would be held accountable for the cost of installing the stone.

68Jason testified that he advised Dino that the stone could be laid in the winter conditions, provided the area was heated by installing tarps, renting heaters, and purchasing propane. He advised Mr. Bertolissi that Rocksolid was prepared to continue the work if he paid for the extra cost for heating the areas where the stone remained to be installed. Mr. Bertolissi refused to pay for any extra heating cost.

69Jason did not agree to continue installing stone when Mr. Bertolissi refused to pay for the extra heating cost, at which point Jason testified that Dino told him to leave the jobsite with their trucks and trailers and remove their scaffolding. Jason testified that Rocksolid followed Mr. Bertolissi’s instructions. Their workmen attended onsite, cleaned up the site, removed their scaffolds, took photos of the work completed on the house, and Darryl measured the area where stone was installed and remained to be installed.

70Mr. Bertolissi denied that he told Jason Currie and Rocksolid to leave the jobsite and testified that Rocksolid simply abandoned the jobsite. I do not accept Dino Bertolissi’s evidence in this regard as I found him not to be a credible witness and I accept Jason and Darryl’s evidence of what happened. I found Jason and Darryl Currie to have been very credible witnesses throughout this trial.

71I accept Jason’s evidence that Dino had assumed responsibility for all of the business decisions related to the construction project and acted as an agent for Stephanie throughout the project. Stephanie left the meeting as she became very upset that the stonework could not be completed immediately. I previously found that Dino was responsible for the delay from September 24, 2010 to November 11, 2010 for failing to order and ensure that a sufficient quantity of stone was delivered to the site. As a result, I find that Mr. Bertolissi was responsible for the extra cost caused by his delay, namely the costs of renting tarps, heaters and purchasing propane. The delay caused by Mr. Bertolissi meant that the stone had to be installed in cold weather in late November 2010 and December 2010 where additional cost for heat was required.

72I find that Dino Bertolissi followed the advice of Steve Lacelle and did not order sufficient stone to complete the installation. He initially only ordered half of the estimated required stone in September of 2010. Mr. Bertolissi then failed to order and ensure that a sufficient quantity of stone was delivered to the worksite on or about November 11, 2010, at which time work recommenced.

73The masons ran out of stone again on November 19, 2010. Dino’s failure to ensure a sufficient quantity of stone was delivered in November constituted a second breach of contract by Mr. Bertolissi. I accept Jason Currie’s evidence that Dino Bertolissi refused to pay for the additional cost to heat the walls to allow Rocksolid to complete the work in late November and December of 2010. I further find that Mr. Bertolissi’s refusal constituted a repudiation of the contract by him. I further accept Jason’s evidence that Mr. Bertolissi ordered Rocksolid to leave the jobsite, and to remove their scaffolding and equipment from the site. Ordering Rocksolid to leave the jobsite was also a repudiation of the contract by Mr. Bertolissi.

74The evidence introduced by Mr. Bertolissi on his counterclaim supports the finding that the cost of tarps and propane heaters were reasonably required because the invoice Mr. Bertolissi produced from V&M Construction, the contractor he hired to complete the work, included amounts charged for propane, tarps, and rental of heaters.

75For the above reasons I find that Dino Bertolissi was responsible for the delay in installing the stone on his residence by failing to deliver an adequate quantity and correct sizes of stone to the jobsite on September 24, 2010 and again on November 19, 2010. I further find that these two breaches of contract by Mr. Bertolissi caused the delay in completing the work. I further find and accept the evidence of Jason Currie and Darryl Currie that Dino ordered Rocksolid to leave the jobsite on November 24, 2010, and refused to pay for the additional cost of heat to prevent the mortar from freezing, namely the installation of tarps and the renting of propane heaters and the supply of propane. I further find that by ordering Rocksolid to leave the jobsite and by refusing to pay for the cost of heating that was reasonably required, the Bertolissis repudiated the contract with Rocksolid.

76I further find that Rocksolid did not breach any of the terms of the contract as they were prepared to complete the balance of the installation of the stone at the Bertolissi residence at the agreed price provided Mr. Bertolissi supplied the required stone and was prepared to pay the extra cost of heating. Mr. Bertolissi refused to pay for these items. I find that his failure to perform his part of the contract caused the delay and caused Rocksolid to be unable to complete the work without having the walls heated.

Disposition of Issue #5

77I find that the Bertolissis breached the contract by failing to supply the required stone to the jobsite on two occasions, namely on September 24, 2010 and again on November 24, 2010, which caused the delay in completing the work. I also find that the Bertolissis repudiated the contract by ordering Rocksolid to leave the jobsite on November 24, 2010 and by refusing to pay for the extra cost of heating.

Issue #6 – Were the owners and general contractor required to give Rocksolid a reasonable opportunity to correct the deficiencies, before they are able to recover the cost of correcting the deficiencies by another contractor? If so, did the Bertolissis fail to mitigate their damages?

78In the case of Don Pocock Construction Ltd. v. Brady, [2004] O.J. No. 688 at para. 42, Timms J. held that a contractor had a right to return to the jobsite to repair deficiencies in certain circumstances. He stated as follows:

The plaintiff asserts that, at common law, a builder has the right return to the site to repair deficiencies. In support thereof, he cites Longwell Enterprises Ltd. v. McGowan [(1989), 37 C.L.R. 13 (B.C. Co. Ct.) [Longwell]]; Missios (Re) [[2000] O.L.A.T.D. No. 90 (Licence Appeal Tribunal) [Missios]]; Karl Mueller Construction Ltd. v. Northwest Territories (Commissioner)[(1989), 35 C.L.R. 31 (N.W.T. S.C.) [Karl Mueller Construction Ltd.]]; Middlesex Condominium Corp. No. 86 v. Core Developments Ltd. [[1990] O.J. No. 431 (H.C.J.) [Middlesex Condominium Corp.]]; and Pavao v. Pinarreta[[1995] O.J. No. 1197 (Div. Ct.) [Pavao]]

79At para. 44 Timms J. stated:

The defendants accept that, in the right circumstances, the court may grant a mandatory order as requested. They do not dispute that, at common law, a builder has the right return to a site to repair deficiencies. They argue, however, that if there has been a breach of contract on the part of the contractor, that right is lost. In support of that, they cite Tucci v. Concepts Construction Ltd. [(2000), 2 C.L.R. (3d) 291 (Sup. Ct.) [Tucci]] and Dominico v. Earle [[1945] O.W.N. 375 (A.S. Marriott, Assistant Master) [Dominico]], [3027539 Nova Scotia Limited v. Ajay and Meenu Mogon (2002), 2002 NSSC 96, 210 N.S.R. (2d) 124, 23 C.L.R. (3d) 88 (S.C.) [3027539 Nova Scotia Limited]] and Hadrian Development Ltd. v. Sansom[(1991), 46 C.L.R. 218, [1991] B.C.J. No. 2504 (S.C.) [Hadrian Development]]

80In para. 45 of Don Pocock Construction Timms J. stated:

Although the Longwell decision is little more than a head note, it does appear to stand for the proposition that a builder who is ready and willing to complete the work required to make good the contract between it and the home owner, has the right of entry to the house to do so. In that case, it was held that a refusal to permit such entry amounted to repudiation of the contract by the homeowner.

81In the decision of C.S. Bachly Builders Ltd. v. Donna Lajlo, [2008] O.J. No. 4444 at para. 65, C. Hill J. stated as follows:

The plaintiff acknowledges deficiencies in the carpentry and related work of its roofing sub-trade. Mr. Tompkins did not suggest these deficiencies were trivial. However, Bachly was entitled to the opportunity to correct the unsatisfactory work, to lay off the correction cost against its sub rather than absorb it, and to complete its contract. … It was unreasonable not to permit Bachly to rectify the roofing deficiencies.

82In Bachly C. Hill J. held that an implied term of the defendant’s contract was that the contractor’s work be done in a workmanlike manner. I agree and find that the same term also applies to Rocksolid’s contract with the Bertolissis. However, the deficiencies did not go to the root of the contract. In Bachly, the court stated at para. 82 that:

… I am not satisfied, on the whole of the evidence I accept, that the entirety of that work was so defective as to go to the root of the contract such as to amount to a fundamental breach by the plaintiff. This is essentially a fact-driven determination. Nor does the evidence support any intention by Bachly to no longer be bound by the contract.

83The alleged deficiencies in Rocksolid’s workmanship related to the colour of the mortar in certain areas, which Stephanie found did not exactly match the colour in some other areas. She also complained about the installation of stone around the window sills. Murray Scott (“Mr. Scott”), the mason who repaired the deficiencies, acknowledged that there were two approaches on how to install the stone around the window sills. I accept Jason’s evidence that the method Rocksolid adopted had been agreed upon between Rocksolid and Stephanie and that this issue was one where two reasonable choices were available and it was purely a matter of aesthetics. These deficiencies did not go to the root of the contract.

84I find that the gaps around some windows and doors which exceeded the one quarter inch to three eighths of an inch standard were valid deficiencies. No expert evidence was given other than that of Mr. Scott and Jason who were both qualified masons, who both agreed that in some cases the gap around some windows and doors exceeded the acceptable standard.

85Jason testified that the full size windows and doors were not installed when the stone was installed and that this explained why there was a larger gap around some of the windows and doors. In any event, Rocksolid agreed to proceed on the understanding that it would have to adjust the stone around the windows and doors to reduce the gap to the required standard. I also accept Jason’s evidence that he advised Mr. Bertolissi that Rocksolid was ready and willing to repair all of the deficiencies the following spring at no extra cost to the Bertolissis.

86Another deficiency identified was a crack that developed in the stone mortar above the large window at the rear of the house. Mr. Scott attributed the cause of the cracking to the use of an undersized metal angle iron to support the weight of the stone above the large window. I accept Mr. Scott’s evidence that this crack occurred as a result of the use of an undersized iron support. However, this crack only became visible in the spring of 2011 and Rocksolid agreed to correct all deficiencies at no charge to Mr. Bertolissi. The repair of this crack would have been included as a deficiency.

87On the whole of the evidence that I accept, including the evidence of Jason, Darryl and Mr. Scott, I find that the deficiencies were relatively minor and certainly did not constitute a fundamental breach or go to the root of the contract. There was no evidence that the deficiencies had to be repaired immediately as the stone wall was functional. This is confirmed by the evidence of Mr. Scott who testified that he repaired the deficiencies over the next year when he had time and was not busy with other projects.

88At para. 87 of Bachly, C. Hill J. stated:

Although the defendant may be entitled to a set-off for that roof work which was defective, in the absence of a fundamental breach by Bachly, she was obliged in mitigation of her damages to provide the plaintiff a reasonable opportunity to correct its own work. … In these circumstances, the defendant is not entitled to damages based on her own costs of correction: see Obad (c.o.b. Rockwood Drywall) v. Ontario Housing Corp., [1981] O.J. No. 282 (H.C.J.) at para. 48 per Blair J. (as he then was); 568694 Ont. Ltd., at para. 31; Argiris, at para. 22

89In Longwell Enterprises Ltd. v. McGowan, 1989 CarswellBC 652 (B.C.S.C.), 37 C.L.R. 13, at para. 85 the Court stated:

Where work ceases altogether, the Court has to find that one or the other parties was in the wrong. I find that the non-completion of the contract was the fault of the defendant owner. These faults were (1) a failure, which developed into a complete refusal, to pay anything to the contractor thus failing to abide by a term of the contract; (2) denying the right of entry to the house in early January 1985; (3) taking over a portion of the work which had been assigned under the contract to the contractor. In their cumulative effect, these actions constituted repudiation of the contract on the part of the defendant. The plaintiff elected to accept such repudiation by leaving the job. The plaintiff, not being in fundamental breach of the contract itself, was at liberty to take no further risks of being out of pocket, and recover for what work he had done on a quantum meruit basis.

90In the Bachly case, C. Hill J. concluded at para. 88 that: “The defendant must pay for the work that the plaintiff did up to the time the plaintiff ceased work.” At para. 98 the Court held that: “The defendant’s claim cannot include work that still properly remained to be done at the time the plaintiff left the job, justifiably, as I have found.” I agree with these statements and they also apply to this case.

91In the case of Connolly v. Greater Homes Inc., 2011 NSSC 291 at para. 48, the Court stated:

As to the first point, the governing legal principle is that wherever it is reasonable, a party has a positive obligation to afford to the party alleged to have caused a deficiency an early opportunity to examine and to rectify it. That is consistent with general principles of mitigation (see, for example Ontario (Attorney General) v. CH2M Gore & Storrie Ltd. (2002) 48 C.E.L.R. (N.S.) 145).

92To summarize from the above cases, the legal principles applicable to the facts before me are as follows:

a. In the situation where work stops on a construction project the Court must decide which of the parties breached the terms of the agreement. On the facts before me I find that the Bertolissis breached the terms of the agreement by failing to ensure an adequate quantity of stone was delivered to the jobsite on both occasions. Their failure caused the work to be delayed to late November 2010 which further caused the requirement for heating. The Bertolissis then repudiated the contract by failing to agree to pay the additional cost for heating to complete the installation of the project in late November and December 2010 and by ordering Rocksolid to leave the jobsite. In addition, Mr. Bertolissi refused to give Rocksolid an opportunity to return to complete the work and repair any deficiencies the following spring as offered by Rocksolid. Mr. Bertolissi’s actions amounted to a repudiation of the contract, which was accepted by Rocksolid by agreeing to leave the jobsite when requested to do so.

b. Rocksolid acknowledged that there were minor deficiencies in their workmanship which did not constitute a fundamental breach of the contract. In addition, there was no urgency requiring the deficiencies to be corrected immediately. In these circumstances where the contractor was prepared to correct the deficiencies at no charge, where there was no fundamental breach and where there was no urgency requiring immediate repair, I find that it was reasonable for the owner to provide the contractor with an opportunity to return to correct the deficiencies in order to mitigate their damages. I further find that if the owner fails to provide the contractor with a reasonable opportunity to correct the deficiencies in its work, which do not constitute a fundamental breach of the contract and where there is no urgency, the owner is not entitled to claim damages based on his or her cost to have the deficiencies repaired by a third party contractor.

93Applying the above legal principles to the facts before me, I find that the deficiencies were of a minor nature and did not constitute a fundamental breach or go to the root of the contract, and there was no urgency requiring their immediate repair. The Bertolissis did not order Rocksolid to leave the jobsite because of the deficiencies but because Rocksolid refused to pay for the cost of heating to complete the work after November 24, 2010. The additional heating costs should have been paid by the Bertolissis as they were responsible for causing the delay.

94The evidence is undisputed that Dino Bertolissi did not give Rocksolid the opportunity to return to correct the deficiencies in the spring of 2011, as there were no emails or any other communication from Dino to Rocksolid giving it an opportunity to return to repair the deficiencies.

95I accept Jason’s evidence that he had offered to return to complete the work and to correct deficiencies in the spring of the following year at no additional cost to the Bertolissis and that this offer was rejected by Mr. Bertolissi. Mr. Bertolissi insisted on the work being completed immediately on November 24, 2010, but he refused to pay for the extra cost of heating the walls to allow the masons to install the stone in cold weather.

96In the circumstances, I find that Mr. Bertolissi repudiated the contract and failed to give Rocksolid the opportunity to return to repair the deficiencies. Therefore the Bertolissis cannot claim the cost to repair the deficiencies by another contractor.

97I am also satisfied that Rocksolid has proven that the Bertolissis could have accepted Rocksolid’s offer to complete the work in November and December 2010 if Mr. Bertolissi paid for the heating cost or to return to complete the work and repair the deficiencies in the spring at no additional cost. I am also satisfied that it would have been reasonable for the Bertolissis to have allowed Rocksolid to repair the deficiencies in the spring. I therefore find that damages would have been nil if they had accepted Rocksolid’s offer. I therefore find that the Bertolissis failed to mitigate their damages.

98I also reject Mr. Bertolissi’s evidence of the cost he claimed he incurred to correct the deficiencies. Mr. Bertolissi testified he incurred a cost of $46,000 to correct the deficiencies based on the invoices and cheques he allegedly wrote to V&M Construction. I find that Mr. Bertolissi’s evidence was not credible for the following reasons: a) his evidence that he received the invoices from V&M Construction, which included a summary of the hours worked and hourly rates charged for the work done, was contradicted by his own witness Mr. Scott. Mr. Scott, the mason who repaired the deficiencies, testified that he never provided interim statements or invoices, did not provide details of the hours he worked and only delivered his final invoice to V&M Construction in December of 2011. Therefore, it was impossible for Mr. Bertolissi to have reviewed the time spent and hourly rates charged by the masons on each interim invoice as he testified; b) Secondly, Mr. Scott contradicted Mr. Bertolissi’s evidence of the cost incurred to repair the deficiencies. Mr. Scott testified that he charged less than $14,000 to repair the deficiencies by estimating the time spent by himself and his workers using their regular hourly rates. The invoices produced by Mr. Bertolissi from V&M Construction totalling $46,561, bear no relation to the cost actually incurred by the masons to repair the deficiencies. Even if some profit and administration charges, which are common in construction projects, were added to the amount charged by Mr. Scott, the amount would be much less than $46,000; c) Thirdly, no one testified on behalf of V&M Construction to explain the invoices and provide details about the time spent by their sub-contractor on the job and the hourly rates charged. I draw an adverse inference against Mr. Bertolissi’s evidence as a result of his reliance on unsubstantiated invoices, and his failure to call his general contractor, who prepared the invoices. I further find that the V&M Construction invoices tendered by Mr. Bertolissi were grossly inflated and were tendered to mislead the Court. I infer that these invoices were artificially inflated to assist Mr. Bertolissi with his counterclaim.

Disposition of Issue #6

99I find that the Bertolissis were required to give Rocksolid a reasonable opportunity to correct the deficiencies, and failed to do so and thereby failed to mitigate their damages. As a result they are unable to recover the cost of correcting the deficiencies by V&M Construction.

Issue #7 – What amount, if any, is owing by the Bertolissis to Rocksolid on their claim?

100The terms of the contract with regard to the amount to be paid are not in dispute, namely that Rocksolid was to be paid at the rate of $10.50 for the number of square feet of stone installed. I have accepted Rocksolid’s calculation that it installed 3,226 square feet of stone on the exterior of the Bertolissis’ house for the reasons given above. In addition Rocksolid installed four arches. I further accept Jason’s evidence that the one stone missing for the arch as laid out in the garage could easily have been cut to make eight stones to match the other arches. This is not an issue of importance in this case.

101Mr. Bertolissi did not dispute the claim for the 160 concrete blocks installed on the house for a cost of $1,600 nor dispute the claim for $80 for steel purchased for the house. Mr. Bertolissi objected paying the $500 invoiced for tearing down the scaffolding to allow the natural gas to be installed. The extra charge for the $500 is not allowed because I find there was no evidence of an agreement on the part of the Bertolissis to pay this extra cost.

102I find that Rocksolid is entitled to be paid on a quantum meruit basis for the work performed in accordance with the price quoted in the contract of $10.50 per square foot of stone installed. I accept Darryl’s evidence and his calculations that Rocksolid installed 3,226 square feet of stone for reasons previously given.

103I further find the amounts claimed by Rocksolid are reasonable as the original estimate of 3,800 square feet of stone, subject to adjustment after the stone was actually laid, taking into account that there would be some wastage. Adding 3,226 square feet of stone installed plus 583 square feet would amount to a 3,809 square feet of stone for the complete house. This is very close to the original estimate of 3,800 square feet of stone. Mr. Bertolissi refused to produce a copy of the original plans or details of how he calculated the square footage.

104As a result I find that the total amount owing to Rocksolid for work and material supplied pursuant to the contract is as set out on the invoice dated December 4, 2010, except for the $500 extra charge. When the sum of $500 is deducted from the amount of $37,253 on the invoice, the amount owing was $36,753 plus HST. Adding HST brings the total amount owing to $41,530.89. When the sum of $23,000 received as deposits by Rocksolid is deducted, this leaves a balance owing to Rocksolid of $18,530.89.

Disposition of Issue #7

105I therefore find that the Bertolissis owe Rocksolid the sum of $18,530.89 on their claim.

Issue #8 – What amount, if any, is owing by Rocksolid to the Bertolissis on their counterclaim?

106I found that the Bertolissis breached the terms of their contract with Rocksolid by failing to deliver a sufficient quantity of stone to the jobsite as required on September 24, 2010, thereby causing the delay into late November 2010, and then repudiated the contract by refusing to pay for the cost required for heating to allow Rocksolid to complete the installation of the stone following November 24, 2010.

107I find that the Bertolissis failed to mitigate their damages by refusing to agree to pay for the cost of heating to allow Rocksolid to complete the installation of the stone in freezing temperatures in late November and December of 2010. Mr. Bertolissi has counterclaimed for the cost to complete the work in the amount of $17,515. Included in this amount is the cost of heating, tarps, propane and heater, which he paid to V&M Construction and Form Work Ltd.

108Rocksolid agreed to either continue with the work after November 24, 2010, if Mr. Bertolissi paid for the extra cost to heat the walls or to return in the spring and complete the installation of the stone and the arches at no additional cost. Both of the above options were reasonable and would have allowed the Bertolissis to mitigate their damages completely and incur no additional cost.

Claim for Cost to Complete the Installation of Stone

109The Bertolissis’ claim for $17,515 to complete the installation of stone included the cost to install scaffolding, tarps, mortar, propane heaters and propane. This is set out in an invoice dated February 15, 2011. Mr. Bertolissi produced an invoice from V&M Construction for $15,000 plus HST. I draw an adverse inference from Mr. Bertolissi’s failure to call a witness from V&M Construction, and because the invoice he relies on contains no details of hours spent and number of workmen who worked on the project or provide details or separate cost for scaffolding, tarps, mortar, propane, and propane heaters.

110Both Mr. Bertolissi and Rocksolid estimated that there was approximately 600 square feet of stone remaining to be installed when Rocksolid was ordered off the jobsite. Mr. Bertolissi testified that 643 square feet of stone remained to be installed, whereas Rocksolid calculated that there were 583 square feet of stone remaining to be installed plus three remaining arches to be cut and installed. I accept Rocksolid’s evidence that 583 square feet of stone remained to be installed plus the three arches for the reasons previously given.

111I find that a reasonable hourly rate for the installation of stonework was $10.50 per square foot as estimated by Rocksolid. As a result I find that a reasonable amount to complete the work was $6,121.50 (583 square feet x $10.50) for the installation of 583 square feet of stone on the front plus the cutting and installation of three arches which were quoted $250 each, which totals $750 plus HST. This is the amount of the credit given to the Bertolissis by Rocksolid on their final invoice.

112As a result, I dismiss the Bertolissis’ counterclaim for the amount of $17,515 to complete the installation of the stone.

Claim for Repair of Deficiencies

113The Bertolissis did not call any evidence from V&M Construction to justify the invoices totalling $46,561 for repairing the alleged deficiencies. The Bertolissis called Mr. Scott who was the mason who repaired the deficiencies. I find that Mr. Scott was a very credible witness. He testified that he worked to correct the deficiencies together with a journeyman assistant and a helper. His usual hourly rate was $50 per hour and his journeyman’s rate was for $35 per hour and his labourer’s rate was $25 an hour. In cross-examination he testified that he estimated the total time that he spent correcting deficiencies with his assistants, at the rate he charged, totalled less than $14,150. Mr. Scott testified that this number seemed high to him, and that he had billed V&M Construction less than that amount. In addition he testified that he had spent approximately 30 hours cleaning stones and windows to remove mortar drips especially in the front of the house, where the stones had been installed in the winter. It is more likely than not that the work in this area was not performed by Rocksolid.

114Mr. Scott’s testimony directly contradicted the evidence of Mr. Bertolissi. Mr. Scott testified that he did not provide any detailed hours or invoices to V&M Construction or to Mr. Bertolissi. Mr. Bertolissi testified that he had reviewed details of the hours spent before he paid each interim invoice. This was not possible as Mr. Scott testified he never sent any interim invoice and was only paid at the end of December 2011. I find that Mr. Scott’s evidence was credible and it directly contradicted Mr. Bertolissi’s evidence in a substantial way, namely that he never submitted time sheets or an interim invoice. Therefore Mr. Bertolissi could not have reviewed the details of the hours spent before paying each interim invoices to correct the deficiencies. Also, I find that the cost of remedying the deficiencies would be approximately $10,000 based on the evidence of Mr. Scott.

115On a balance of probabilities, I do not find that the cost for correcting deficiencies was anywhere near the $46,561 claimed by the Bertolissis. This amount bears no relationship to the actual work done by Mr. Scott, the masons who carried out the repairs. I draw an adverse inference against Mr. Bertolissi on this issue for failing to have anyone testify from V&M Construction. As a result, I find that the cost of repairing the deficiencies based on the time spent by Mr. Scott amounted to $10,000 and not $46,561 as claimed by Mr. Bertolissi.

116It is uncontested that Mr. Bertolissi never provided a list of deficiencies and did not provide Rocksolid with the opportunity to correct the deficiencies, many of which are acknowledged by Rocksolid, and for this reason his claim for the cost to repair the deficiencies is denied.

Disposition of Issue #8

117I have found that the Bertolissis breached the terms of the contract and then repudiated the contract. I also find that the Bertolissis failed to mitigate their damages by either paying for the extra cost of heat to allow Rocksolid to complete the work in November and December 2010 at the agreed price, or by allowing Rocksolid to complete the work the following spring at no additional cost.

118Secondly, I find that the Bertolissis failed to give Rocksolid a reasonable opportunity to correct the deficiencies at no charge and therefore failed to mitigate their damages. I therefore conclude that Rocksolid does not owe the Bertolissis any money and the counterclaim is dismissed.

Final Disposition

119In summary, the defendants are ordered to pay the plaintiff damages fixed in the amount of $18,530.89 and the defendants’ counterclaim is dismissed.

Costs

120The plaintiff may make submissions on costs and pre-judgment interest within 15 days. The defendants shall have 15 days to respond and the plaintiff shall have 10 days to reply.

Mr. Justice Robert J. Smith

Released: November 29, 2013

COURT FILE NO.: 11-50689

DATE: 2013/11/29

ONTARIO

SUPERIOR COURT OF JUSTICE