ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 84506/13

DATE: 2014-12-10

BETWEEN:

RVL MASONRY LTD.

Plaintiff

– and –

CHRISTIAN CHUKWUEDOZIE CHIJINDU & NKIRULA OCHEI

Defendants

A. Carnevale, for the Plaintiff

Defendants self-represented

BETWEEN:

CHRISTIAN CHUKWUEDOZIE CHIJINDU & NKIRULA OCHEI

Plaintiffs

-and –

ROBERT VAN LONDEN

Defendant

COURT FILE NO. 85292/13

Plaintiffs self-represented

A. Carnevale for the Defendant

HEARD: December 3,4,5/ 2014

Justice B. Glass

[1] The two trials involve a construction lien claim for services rendered when RVL Masonry Ltd. laid brick and stone at a new house being built by Mr. Chijindu and Ms. Ochei. The dispute relates to the way the service pricing should be calculated.

[2] RVL Masonry Ltd. submits that it was to be paid $1200 for each 1000 bricks it laid. Total bricks were to be 8400. And in addition, it was to be paid $10 per square foot for 2200 square feet for the stone work. An additional 2970 bricks were needed to complete the job.

[3] The Defendants submit that the pricing was to be $10 per square foot for both brick and stone work. The total alleged square feet was 2,200. Mr. Chijindu calculated it to be $18, 238.20 from which he deducted over $446.35 for a broken window that he alleges was the fault of the employees of RVL Masonry Ltd. This deduction resulted in a net payment of $17,791.85.

[4] Mr. Chijindu did his own calculation based on a per square foot fee for both brick and stone.

[5] The issue in this trial is what the pricing method was and further whether the lien was out of date when the claim was registered.

[6] The documentation from Don & Son for stone and brick and from RVL Masonry Ltd. for its method of charging for laying brick and stone are consistent with what RVL Masonry Ltd. has claimed. That is a square footage fee for the stone laying and a per brick charge for the bricks. There were 8400 bricks being charged for installation at $1200 per 1000 bricks. An additional 2970 bricks were needed to complete the work by RVL Masonry Ltd. The total invoices from RVL Masonry Ltd. was over $32,000 with HST so that when the amount paid by the Defendants was deducted, there was still a balance of over $14,000 owing.

[7] At the job site, there had been talk about contractors submitting their accounts because some were not being paid.

[8] When Mr. van Londen attended on March 20, 2013 for his payment, he was surprised to receive the $17,791.85 cheque because he expected to receive much more.

[9] When his employees returned on May 9th, there was some finishing up work as well as clean-up. This project had been delayed because of a colder than usual winter.

[10] Mr. Chijindu is not a brick layer or a stone mason. The people who know how to do the pricing for such work are people in that field of work. The method of calculation explained by Mr. van Londen is consistent with what Mr. Walker had reported to Mr. Chijindu when he told the Defendants that he had to calculate out the pricing with the number of brick and stone to be supplied by Don and Son. That is how the $24,508 figure was derived before the bricklaying and stone masonry work commenced.

[11] There is no complaint with the quality of the work done by RVL Masonry Ltd.

[12] There is an issue about how much the job was to cost as well as whether or not the claim was filed out of time pursuant to the Construction Lien Act.

[13] I am satisfied that RVL Masonry Ltd. pricing is what is to be applied and that Mr. Chijindu is in error with his method of calculation. He attempted to challenge the quote from RVL Masonry Ltd. as if the stone and brick were the same materials, but it is obvious from the documents and the explanation from Mr. van Londen that the reference to same materials is the materials used by RVL Masonry Ltd. to lay the brick and stone rather than the brick and stone themselves. This is a logical interpretation because RVL Masonry Ltd. did not buy the bricks and stone; rather, the Defendants did so. To suggest during the trial that the quote from RVL Masonry Ltd. for the bricklaying and stone masonry work was to include the actual bricks and stone when the stone masons had no involvement with the purchase of those items does not make sense. It amounts to playing games with the words as if to confuse deliberately everyone involved with the trial. I can only conclude that Mr. Chijindu in his testimony was being less than forthright about his interpretation of the quote. If that is a correct conclusion, the next natural inference is that Mr. Chijindu was looking for ways to reduce his costs for the construction of the house with respect to bricklaying and stone masonry.

[14] The Construction Lien Act provides time lines for lien claimants to preserve and perfect their liens. In this case, much of the RVL Masonry Ltd. work was done by the time that the Defendant-owners provided their cheque of $17,791.85 on March 20, 2013. I accept that not all the work of RVL Masonry Ltd. was completed at that time. I accept that RVL Masonry Ltd. attended the job site on May 9, 2013 to finish remaining work. That involved about $1,340 of work. That work value amounts to 4.657% of the entire bricklaying and masonry work. The actual cost to RVL Masonry Ltd. for its staff to attend to finish the work was $674, and that amounts to 2.332% of the entire RVL Masonry Ltd. contract. 1% of the total bricklaying and stone masonry work would have been over $1,000. The Act provides that the work is deemed to be completed when remaining work is between the lesser of 1% and $1,000. Their lien claim was preserved within the requirements of the Construction Lien Act. Further, RVL Masonry Ltd. perfected the lien with its certificate of action on June 5th, 2013.

[15] Mr. Chijindu and Ms. Ochei counterclaimed against RVL Masonry Ltd. and also commenced an action against Robert van Londen arguing that his conduct in filing an out-of-date lien in May 2013 was so improper that he cannot hide behind the corporate veil of RVL Masonry Ltd. In the separate action, Robert van Londen counterclaimed for damages against Mr. Chijindu and Ms. Ochei.

[16] I do not share the position taken by the Defendant-owners because this is a simple construction lien issue to be handled within the Construction Lien Act. The incorrect interpretations expressed by Mr. Chijindu regarding the meaning of words in the RVL Masonry Ltd. quote, mentioned above, inferred that the Defendant-owners were clouding the issues with one natural interpretation to follow. That interpretation was that the Defendants were improperly trying to reduce their costs for bricklaying and stone masonry at the expense of RVL Masonry Ltd. I do not find any improper conduct by Mr. van Londen or RVL Masonry Ltd. demonstrated by the filing of the claim for lien and the perfection of the action.

[17] In conclusion, the personal action by the Defendants against Mr. van Londen is without any merit and will be dismissed. The counterclaim by Mr. van Londen will be dismissed because the real action was the construction lien. Costs in the actions can address both the construction lien proceeding as well as the personal action and counterclaim.

Conclusion

[18] There will be judgment in favour of RVL Masonry Ltd. in the sum of $14,714.12 inclusive of HST in action 84506/13. The counterclaim of Mr. Chijindu and Ms. Ochei will be dismissed.

[19] Pre-judgment post-judgment interest shall be awarded pursuant to The Courts of Justice Act.

[20] The sum of $18,392.65 held by the Accountant of the Superior Court of Justice to the credit of the RVL Masonry Ltd. action 84506/13 shall be released and paid to RVL Masonry Ltd.

[21] Action 85292/13 by the Defendants against Robert van Londen will be dismissed.

[22] The counterclaim of Robert van Londen in action 85292/13 will be dismissed.

[23] I shall hear costs submissions for both actions.

Justice B. Glass

Released: December 10, 2014