ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: Milton 6568/12
DATE: 20140411
BETWEEN:
Colourific Coatings Ltd.
Plaintiff
– and –
Gentry Ltd.
Defendant
I. Andriessen, Counsel, for the Plaintiff
E. Spong, Counsel, for the Defendant
HEARD: April 8, 2014
Andre J.
The plaintiff sues the defendant for damages arising from the latter’s alleged breach of contract by failing to honour a three year warranty of its work in repairing the roof of the plaintiff’s building.
The defendant claims that it did not breach its contract with the plaintiff, and that the latter has failed to prove, even on a balance of probabilities, that the repair work it did on the plaintiff’s roof was defective.
This trial, therefore, raises the following issue:
Did the defendant breach its contract with the plaintiff by failing to honour a three year warranty to repair any defects in its repair of the plaintiff’s roof?
For the reasons indicated below, I conclude that the defendant breached its contract with the plaintiff and accordingly is liable for the cost of repairing the defective work it performed on the plaintiff’s roof.
OVERVIEW
[1] In July 2011, the plaintiff hired the defendant to repair an approximately 3,600 square foot area of a 46,414 square foot roof in Mississauga.
[2] The plaintiff desired to stop the leaks in the roof until her lease of the building expired in 2013.
[3] Before contracting with the defendant to repair the defective roof, the plaintiff hired a roofing company, called CentiMark to diagnose the problems with the roof. This company did a thermal imaging scan of the roof and spray painted the areas on the roof where there was leaking. It then prepared a diagram showing the areas of the leaks and provided the plaintiff with an estimate of over $30,000 to repair the defective areas of the roof.
[4] There is some dispute in the evidence about whether the defendant inspected the inside of the building before giving an estimate of $18,532 to stop the leaks. Ms. Teskey, who owns the plaintiff company, testified that two of her employees showed Mr. Darren Peters, owner of the defendant company, inside the building. Mr. Peters, on the other hand, testified that Ms. Teskey merely showed him the diagram prepared by CentiMark, which identified the areas in the roof where the leaks were occurring.
[5] Both parties agreed however, that Ms. Teskey advised Mr. Peters that she wanted a temporary fix of the problem; one that would last until 2013 when her lease expired. It is also agreed that Ms. Teskey wanted the lowest price to complete the job.
[6] Mr. Peters provided three cost options to Ms. Teskey. The first estimate to repair the “wet” areas of the roof was for $36,160. The second estimate was $18,532, while the third, which involved the replacement of the whole roof, was over $300,000. Ms. Teskey chose the second option and contracted with the defendant to do the work necessary to stop the leaks. The contract included a three year warranty given by the defendant to the plaintiff.
[7] The plaintiff pleaded that the areas of the roof repaired by the defendant, began to leak immediately after the defendant completed his repair of the roof.
[8] The plaintiff asked the defendant to repair another area in the roof. The defendant completed this work and was paid by the applicant.
[9] On January 6, 2012, Ms. Teskey asked Mr. Peters to inspect the leaks from the roof in the area initially repaired by the defendant.
[10] On January 9, 2012, the defendant attended the plaintiff’s building and cleared snow from one area of the roof. He stated that he would return the next day to repair the roof but never did.
[11] The plaintiff then retained two different companies to repair the work done by the defendant and incurred additional costs of $26,900.25 to fix the repair work done by the defendant.
PARTIES’ POSITIONS
[12] The plaintiff alleges that the defendant’s work was defective and that the defendant had a contractual obligation to repair the work it did on the roof.
[13] The defendant submits that the plaintiff has failed to prove, on a balance of probabilities, that the areas of the roof it initially repaired continued to leak after completion of its work.
[14] The defendant concedes that if I conclude that the continued leaks in the roof originated in those areas repaired by the defendant, then the defendant is liable for the damages which flowed from its work on the roof.
ANALYSIS
[15] The plaintiff called three witnesses to prove its case that the defendant’s work was defective and that the latter failed to honour its three year warranty of the work it performed on the plaintiff’s roof.
[16] On the critical issue about the causal nexus between the work done by the defendant on the plaintiff’s roof, the testimony of Ms. Teskey is not very helpful. She never went on the roof to confirm the work done by the defendant and instead relied on her employee, Dave Wilson, to do that. She had no personal knowledge that the roof continued to leak in the very areas which had been repaired by Mr. Peters. She relied on information she received from Mr. Wilson, Bala Balasingham, her production manager, and from a roof contractor, Tim Sherwood, for her belief that the roof continued to leak in areas repaired by the defendant.
[17] Similarly, Tim Sherwood’s testimony does not fill what the defendant has claimed to be a lacuna in the plaintiff’s evidence. Although he is a very experienced roofer, having been in the business for thirty-seven years, he relied on the diagram prepared by CentiMark and the areas which were identified to him as having been repaired by the defendant, to conclude that the defendant’s work was deficient. He described the work done in those areas as being very shoddy. He found that cement had been used all over the roof and stated that the repairs attributed to the defendant would not have lasted more than two to three days. He concluded that 92.3 percent of the work done by the defendant on the roof had to be replaced.
[18] At its highest, Tim Sherwood’s evidence supports a conclusion that the repair work attributed by others to the defendant was deficient and therefore had to be redone by contractors hired by the plaintiff to correct the deficiencies in the defendant’s work.
[19] On the other hand the affidavit and viva voce evidence of Dave Wilson, the plaintiff’s production assistant, establishes, at least on a balance of probabilities, that the areas on the roof repaired by the defendant continued to leak after the defendant had completed its work on the roof. While conceding that he was not on the roof at all times while Darren Peters repaired it, he climbed on the roof every day and took pictures of the work done by the defendant to show his employer. He knew that the areas to be repaired had been spray painted by CentiMark before the defendant worked on the roof. He testified that the areas ostensibly repaired by the defendant caused leaks in other areas of the roof which also had to be repaired. He concluded that ninety percent of the work done by the defendant had to be redone by another roofing company.
[20] While Darren Peters claimed that the leaks were not in those areas he initially repaired, he never inspected the areas to confirm or challenge the plaintiff’s contention that the roof continued to leak in the areas he repaired. Furthermore, he claimed that he never received any complaints from Sylvia Teskey about the work he had done but acknowledged in cross-examination that he received a letter from her to that effect.
[21] Additionally, the defendant never disputed, in its responding materials, the affidavit evidence of Tim Sherwood or Dave Wilson, in particular, to the effect that “the roof leaked even more in the areas that the defendant had repaired, and new leaks began to appear in areas that had not leaked before”, (at para. 3)
[22] Furthermore, the defendant never denied paragraph 10 in the plaintiff’s statement of claim where it is pleaded that the “defendant’s failure to honour its three year warranty is a breach of contract.” The defendant’s failure to deny this particular pleading by the plaintiff constitutes an admission by virtue of Rule 27.07(2) of the Rules of Civil Procedure.
[23] In my view, the plaintiff has proven, on a balance of probabilities, that the defendant breached its contract with the plaintiff by failing to honour the three year warranty of its work in the contract. There is no question that the failure to honour this warranty constitutes a breach of contract.
DAMAGES
[24] The defendant does not question that in the event that I find that there has been a breach of contract by the defendant, the following damages are payable to the plaintiff:
Invoice No. 1183 of the defendant $18,532.00
Invoice No 1185 of the defendant $ 1,808.00
Subtotal $20,340.00
Less 7.7% of value of work of defendant < 1,566.18>
Subtotal $18,773.82
Money paid to another roofing contractor $ 7,962.75
Costs of repairing work done by the defendant $26,736.57
COSTS
[25] The plaintiff seeks costs in the amount of $18,000 on a substantial indemnity basis.
[26] The plaintiff submits that this reflects an offer to settle to the defendant in June 2013 in which they sought recovery of $26,900.25 and legal fees in the amount of $2,538.61. A subsequent offer on September 25, 2010 sought recovery of $26,736.57, plus legal fees on a partial indemnity basis to June 11, 2013, and substantial indemnity fees thereafter.
[27] In assessing the quantum of costs which should be awarded in this case, I must decide on an amount with is fair and reasonable, having regard to the circumstances of the case.
[28] While there is no suggestion that the number of hours, hourly rate of the plaintiff’s counsel, or the number of hours spent in preparing for the case can be considered unreasonable, I find that this was an uncomplicated case. Indeed, the trial lasted approximately three hours, despite the fact that four witnesses were called by both parties. Additionally, the costs claimed appear to be disproportionate to the total damages awarded to the plaintiff. There is no suggestion that the defendant acted unreasonably even if he failed to accept the plaintiff’s offers to settle.
[29] In my view, costs payable by the defendant to the applicant, in the amount of $13,000 inclusive, are fair and reasonable in this case.
[30] Based on the above, I order that:
The defendant must pay damages in the amount of $26,736.57 to the plaintiff.
Prejudgment interest from July 27, 2011 to April 8, 2014 in the amount of $938.93 calculated at a rate of 1.3 percent annually.
Post-judgment interest calculated at a rate of 1.3 percent interest per annum.
The defendant must pay costs to the plaintiff in the amount of $13,000 inclusive.
Andre J.
Released: April 11, 2014
COURT FILE NO.: Milton 6568/12
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Colourific Coatings Ltd. Colourific Coatings Ltd.
Plaintiff
– and –
Gentry Ltd.
Defendant
JUDGMENT
Released: April 11, 2014