BARRIE COURT FILE NO.: CV-13-1108

DATE: 20151203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DiBella Construction Ltd.
Plaintiff

– and –

Jon Cloud
Defendant

Jason Botelho, for the Plaintiff

Rolf M. Piehler, for the defendant

HEARD: June 1 and 2, 2015 and by Final Written Submissions Received July 24, 2015

JUDGMENT

McISAAC J.

[1] This is a construction lien action. The plaintiff is a foundation contractor and the defendant is a homeowner who built his own home on the waterfront near Barrie and acted as general contractor for the project. The claim is for $7,245.56 plus interest being the balance allegedly owed on the contract. The defendant seeks a set-off along with a counterclaim in the amount of $13,083.29 alleging errors, poor workmanship and breach of contract on the part of the plaintiff.

BACKGROUND

[2] The defendant received municipal approval to rebuild a waterfront residence that was allowed to go forward in two separate phases. This litigation involves the second phase which related to the construction of a garage, a solar furnace/breezeway, a cold storage area and a walkout on the rear, or lakeside, of the property. The work undertaken by the plaintiff is generally depicted in the photographs catalogued in Exhibit 2, Tab 19 and 20. It is evident to me that no concrete was poured in the plaintiff’s forms in the area of the walkout. This circumstance arose as a result of a concern on the part of Mr. DiBella as to the weight-bearing capacity of this addition. When these concerns were communicated to the defendant, he decided to engage the services of an engineer who recommended that some form of additional support be installed under the walkout. An “I-beam” was eventually chosen as the appropriate remedy: see Exhibit 2, Tab 18, 5th photograph.

[3] However, this design change interrupted the flow of construction as it involved an alteration to the plans that required preparation, consultation and approval. In the result, the plaintiff left the job site and undertook work elsewhere pending resolution of this problem which took at least a week to rectify: see Exhibit 2, Tab 14 being a series of email communications between the parties between Wednesday, July 3, 2013 and Wednesday, July 10, 2013. When the defendant was in a position to have the plaintiff’s work continue, he demanded DiBella’s immediate return because there were other trades such as the framers lined up to undertake the next phases of this project. In particular, the defendant expressed concern about the plaintiff’s forms blocking access to the property. On Thursday, July 18, 2013, the defendant threatened removal of the plaintiff’s equipment under the supervision of the local police service. In the result, the plaintiff did remove its equipment and invoiced the defendant for monies owed under the contract.

POSITIONS OF THE PARTIES

[4] The plaintiff suggests it is owed $7,245.56 based upon an invoice dated July 21, 2013 which was delivered to the defendant and remains unpaid. This total includes the balance on the original contract, concrete and rebar charges and HST. The defendant submits that only $3,874.94 remains outstanding on the original contract and extras. In addition, he alleges deficient work on the part of the plaintiff which required significant remediation on the part of another contractor who was engaged to complete this phase of the construction.

ANALYSIS AND FINDINGS

[5] During the course of his testimony, Tony DiBella advised the court that at the time he was told to leave the job site, the contract had been performed to 90 percent completion. In my view, this would trigger a reduction of $655 resulting in a calculation in favour of the plaintiff in the amount of $6,590. This figure includes payments for concrete and rebar which are backed up by suppliers’ invoices.

[6] Turning to the case for the defendant, I have little confidence in his claims for set-off or in his counterclaim. Firstly, he attempted to saddle the plaintiff with responsibility for a flooding problem allegedly related to the construction of this foundation. However, it became evident that this situation was totally the responsibility of third parties and based upon a defective French drain that deposited water onto the subject property. Secondly, the defendant filed an invoice in the amount of $19,815.99 in support of his claim for remediation of the plaintiff’s defective and/or incomplete work: see Exhibit 8. However, the contractor who did this work could only “guesstimate” that $8,500 of that invoice was related to the responsibility of the plaintiff. There is absolutely no breakdown in this invoice reflecting the tasks assigned. Thirdly, the defendant attempts to affix blame to the plaintiff for the breakdown in the completion of the contract. In my view, this allegation is patently unsupported by the evidence. Work had to come to a complete stop when it became evident there was a significant design flaw related to the walkout that had to be rectified before the plaintiff could complete the foundation work. I find the insistence on the part of the defendant that the plaintiff return immediately to the job site to be unreasonable in the extreme. I find his alternative solution of removal of the forms from the side of the road to be equally untenable given the significant “float” charge that would have occurred to the plaintiff if it had elected to do so. For all of these reasons, I reject the claim for set-off along with the counterclaim.

[7] Although I have found in favour of the plaintiff on the issue of liability, I make the following comments in relation to the damages alleged to have been suffered by the defendant. Much of the counterclaim related to late-breaking alleged deficiencies as to the quality and completeness of the work undertaken by the plaintiff. However, the plaintiff was ordered off the job site and never given an opportunity to rectify any of these deficiencies on its own. In my view, this circumstance disentitles the defendant from any compensation for the alleged deficiencies because they were of a relatively minor nature and did not constitute a fundamental breach of the arrangement between the parties: see Rocksolid v. Bertoliss, 2013 ONSC 7343 at paras. 78-99.

CONCLUSION

[8] For these reasons, judgment is awarded in favour of the plaintiff in the amount of $7,245.56 plus interest before and after judgment in accordance with the Courts of Justice Act, R.S.O. 1990, c.C.43. If needed, the subject property will be sold to satisfy these claims. The lien is also confirmed. The counterclaim is dismissed. If the issue of costs cannot be resolved between the parties; I am prepared to consider both sides brief written submissions. Those of the plaintiff shall be delivered to my chambers at Barrie within 10 days hereof and those of the defendant, ten days thereafter.

McISAAC J.

Released: December 3, 2015