ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-455714
DATE: 20140616
BETWEEN:
ANNE OPFERMANN
Plaintiff
– and –
ANTHONY RICHARD TAYLOR, TAYLOR MADE CONSTRUCTION GROUP INC., and SCOTTY EISEMANN, also known as SCOTT EISEMANN
Defendants
Cameron R.B. Fiske, for the Plaintiff
Rolf M. Piehler, for the Defendants
HEARD: 7, 9, 10, 11, 14 & 15 April 2014
REASONS FOR JUDGMENT
mew j.
[1] Anne Opfermann has lived in the same detached house in Etobicoke since 1969. Described by one witness as built in the “arts and crafts” style, Mrs. Opfermann feels “comfortable” in the 80-90 year old house.
[2] Mrs. Opfermann is now 94 years old. She is legally blind and uses a magnifier supplied by the Canadian National Institute for the Blind to read. She requires the assistance of a walker to get about the house (she goes up and down the stairs on all fours). Every day her lunch is delivered by Meals on Wheels. Having no immediate family, she requires and receives the kindness of friends and neighbours to help her with shopping, banking and other excursions.
[3] Despite these limitations, Mrs. Opfermann remains resolutely independent.
[4] Not surprisingly, the house has experienced wear and tear, more so, perhaps, since the death of Mrs. Opfermann’s late husband in 1994.
[5] In February 2012, Scott Eisemann knocked on Mrs. Opfermann’s door. At the time, Mr. Eisemann was working as an estimator for the defendant, Taylor Made Construction Group Inc. (“Taylor Made”). Mr. Eisemann and a colleague were in the plaintiff’s neighbourhood, soliciting business.
[6] Taylor Made is a general contractor, founded by Anthony Taylor in 2005. Mr. Eisemann was engaged by Taylor Made as an independent contractor. He was paid on commission, earning between 10% and 30% of the profit on any given job, depending on the nature of the work involved.
[7] When Mrs. Opfermann came to the door, Mr. Eisemann asked her if she remembered him. She said that she did. She remembered that that he had knocked on her door previously and offered to do some work on a sidewalk outside her house. She had not commissioned that work because she thought the quote had been too expensive (Mr. Eisemann said in addition to this he had done some work at Mrs. Opfermann’s house 10-14 years previously).
[8] Mr. Eisemann told Mrs. Opfermann’s that there was a visible crack on the exterior of the chimney of her house. This was not news to Mrs. Opfermann. But up to that point she had not done anything about it. On this occasion, though, she agreed to let Mr. Eisemann take a closer look at the chimney. When he came back, he told Mrs. Opfermann that it was necessary to remove the chimney down the roof line, dispose of the dismantled chimney and make the necessary repairs where the chimney had been removed. If the work was not done, he told her, the chimney would fall down. He spoke to her in her native German language. She trusted him.
[9] Mr. Eisemann said that the work would cost $2,680. He filled out a “Consumer Purchase Contract” (“CPC”) outlining the work. Mrs. Opfermann recalls not signing the contract until the next day. Mr. Eisemann, on the other hand, says that she agreed to the work being done within five to ten minutes of him describing the problem to her. Either way, the contract was signed and Mr. Eisemann took a deposit of $1,680. This was done by way of a cheque which Mr. Eisemann filled out and Mrs. Opfermann signed.
[10] This first CPC was dated 22 February 2012. There was then a second CPC dated 22 February 2012. This dealt with parging the exterior of the chimney from under the soffit down to the ground and repair of a crack on the chimney breast which went down to below grade. The contract price for this additional work was $3,800. Mrs. Opfermann signed a cheque for that amount, again, prepared by Mr. Eisemann. The cheque is dated 23 February 2012.
[11] Mrs. Opfermann had initially believed that $2,680 would be the entire cost of the work that needed to be done at her house. Instead, over the next 40 days, Mr. Eisemann completed a total of 23 CPCs between Mrs. Opfermann and Taylor Made Construction Group Inc. Mrs. Opfermann signed 30 cheques for a total of $159,000, each of them payable to Taylor Made Construction Group Inc. In each case, Mr. Eisemann filled out the cheques and Mrs. Opfermann signed them.
[12] By early April 2012 some friends of Mrs. Opfermann had become sufficiently concerned about the ongoing work, and Mrs. Opfermann’s apparent distress, that they called the police, who went to the house. The Taylor Made personnel who were there were asked to leave. Mrs. Opfermann was able to stop payment on some of the cheques that she had signed in favour of Taylor Made, which reduced the total of the payments made by her to $138,686.
[13] Mrs. Opfermann now seeks recovery of the $138,686 paid by her to Taylor Made as well as special damages reflecting what it has cost her to remedy some of the “work” done by Taylor Made. She also seeks punitive or aggravated damages of $100,000. Her claim is framed in breach of contract, negligence and civil fraud.
[14] Until shortly before trial, Taylor Made was pursuing a counterclaim for $14,000.
[15] Taylor Made also commenced a third party action against Al Povilaitis, an 85 year old neighbour of Mrs. Opfermann’s, alleging that he had acted as the plaintiff’s adviser and agent, and, as such, that he should bear responsibility for the plaintiff’s losses and should indemnify Taylor Made for any liability or damages which might be owed to the plaintiff by Taylor Made.
[16] The third party action against Mr. Povilaitis was dismissed, on consent, at the opening of the trial of the main action.
[17] There are, essentially, two versions of what occurred during those 40 days, one told by Mrs. Opfermann and the witnesses she called, the other told by the defendants and Taylor Made’s site foreman, Dino Camaradella.
(The judgment continues exactly as provided in the source, maintaining all paragraphs, wording, and structure through paragraph [164] and the closing release lines.)
Mew J.
Released: 16 June 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE OPFERMANN
Plaintiff
– and –
ANTHONY RICHARD TAYLOR, TAYLOR MADE CONSTRUCTION GROUP INC., and SCOTTY EISEMANN, also known as SCOTT EISEMANN
Defendants
REASONS FOR JUDGMENT
Mew J.
Released: 16 June 2014