CITATION: Akhras et al. v. Myung-Hwa, 2015 ONSC 984

COURT FILE NO.: 04-CV-271734CM2

DATE: 20150220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wa-il Akhras and 1581518 Ontario Ltd., Plaintiffs

AND:

Kim Myung-Hwa a.k.a. Myung-Hwa Kim, Defendant

BEFORE: Carole J. Brown J.

COUNSEL: Wa-il Akhras, for the Plaintiffs

J.S. Kuchar, for the Defendant

HEARD: October 8-10, 2014; Written Submissions filed December 19, 2014

REASONS FOR DECISION

[1] The plaintiffs, Wa-il Akhras in Trust and 1581518 Ontario Ltd. ("158") (hereinafter collectively referred to as "the plaintiffs"), represented by Wa-il Akhras ("the plaintiff") pursuant to the Order of Master Abrams dated July 11, 2012, bring this action for damages in the amount of $150,000, arising from an alleged breach of the Agreement of Purchase and Sale dated May 9, 2003, by the defendant/vendor, Kim Myung-Hwa also known as Myung-Hwa Kim ("the defendant"). The plaintiffs allege that the defendants failed to remove the foundations and concrete slab on grade on the commercial premises, as agreed pursuant to the said Agreement of Purchase and Sale. The plaintiffs allege that, as a result of the breach of contract, they sustained financial losses incurred for removal of the concrete foundation and concrete slab on grade, and seek damages therefore.

[2] The plaintiffs allege that they purchased commercial premises situated at 355 Rexdale Boulevard, Toronto ("the subject property"), for purposes of constructing an automotive lubrication dealership, financed by a loan from the Business Development Bank of Canada ("BDC").

[3] The action was commenced as an application on June 22, 2004. Pursuant to the Order of Archibald J. dated June 24, 2004, the application was ordered to be continued as an action. It was further ordered that the vendor's lien in the amount of $65,000 registered on December 10, 2003 against the subject municipal property was to be vacated and discharged upon payment into court of the said amount.

[4] No examinations for discovery were held in this matter. After significant delays and mediation, the defendant set the action down for trial on January 22, 2013. The action was administratively dismissed and subsequently restored to the list on April 8, 2013. The matter was scheduled for trial on September 10, 2013. On that date, the plaintiff, Wa-il Akhras, requested an adjournment in order that he could consult and potentially retain counsel for the plaintiffs. This was objected to by the defendant, citing, inter alia, the long delay that had already been occasioned in this matter and the fact that the plaintiff had been represented by counsel in the past. Indeed, the plaintiff, during the course of the trial before me, advised that he had retained three successive counsel in this matter. Due to the fact that this was the first time that the matter had been called to trial and that trial dates were available during the week of January 13, 2014, the adjournment was granted by McEwen J., peremptory to the plaintiffs. He further awarded the defendant costs of the adjournment thrown away in the amount of $5,000.

[5] The trial date of January 13, 2014 was adjourned on request of the defendant as the defendant's expert witness was not available on that date and rescheduled for February 24, 2014 for three days. On February 3, the plaintiff sought a second adjournment as he would "be overseas working". It was adjourned pursuant to the Order of Himel J. to June 30, 2014, a date available to the plaintiffs, and was made peremptory to the plaintiff. A timetable was also propounded as follows: (i) the plaintiff was to advise the defendant's counsel by March 15, 2014 whether he was producing further reports or documents; (ii) no further productions were to take place after March 15, 2014 without leave of the court.

[6] Despite the Order of Himel J. dated February 3, 2014, the plaintiff attempted, throughout the course of the proceedings, to introduce new documentary evidence, which had not previously been introduced. This continued through the last day of trial. During the first two days of trial, I permitted certain documentary evidence to be introduced, marked as lettered exhibits pending proof of the documents, most of which were not proven. He further attempted to adjourn the trial in order to either obtain counsel or call additional witnesses which he indicated had not previously been called or summonsed, but which he termed "key" to his case. He gave no explanation as to why key witnesses would not have been contemplated and called prior to the outset of trial. After his case was closed, he requested that he be permitted to adduce more evidence and witnesses, which request was not granted.

[7] On the second day of trial, after the plaintiff had testified and called his expert witness on the first day of the trial, the plaintiff requested an adjournment in order to call additional witnesses, introduce additional documentation and retain counsel. In the context of his request for an adjournment, he advised me that he had just begun working overseas in Dubai on June 1, such that he would be able to pay a lawyer now. As indicated above, in seeking his last adjournment before Himel J. on February 3, 2014, he had indicated to Himel J., according to her Endorsement, that he was unable to attend on the date then set for the trial, February 24, 2014, "as he will be overseas working" at that time. There is no explanation as to why he was unable to obtain counsel at that time, as he advised the court in February that he had employment overseas.

[8] Based on the history of the proceedings, which commenced 10 years ago, the Orders that had previously been made and are referenced above, including the Order that all additional documentation to be relied upon at trial was to be produced by March 15, 2014 and also the Orders of September 10, 2013 and January 13, 2014 granting the plaintiffs' request for adjournment, peremptory on the plaintiffs, I concluded that the plaintiffs had had ample time to consult with counsel and to prepare their case and did not grant the adjournment.

The Issues

[9] The issues to be determined by this Court in this trial are as follows:

1. Whether the defendant failed to remove the basement and foundation of the subject property pursuant to the Agreement of Purchase and Sale conditions, as alleged?

2. Whether the defendant's actions caused delay such that the plaintiff could not go on the property and open his business?

3. Whether the actions or omissions of the defendant, if any, resulted in losses or damages to the plaintiffs?

The Facts/Evidence

The Documentary Evidence

[10] The plaintiff, Wa-il Akhras in Trust and the defendant, Myung-Hwa Kim, executed an Agreement of Purchase and Sale dated May 9, 2003 for the purchase by the plaintiff of 355 Rexdale Boulevard, Toronto in the amount of $740,000, with a deposit of $20,000. The Agreement stipulated, inter alia, at Schedule A, as follows:

The Seller agrees to remove all existing structures from the subject property including foundations & the concrete slab on grade. It is also understood that all utilities will be terminated in the appropriate way and pass proper inspections. To be completed within 10 days of completion of transaction.

[11] The Agreement of Purchase and Sale was amended on July 10, 2013 as follows:

Delete:

The Seller agrees to remove all existing structures from the subject property including foundations & the concrete slab on grade. It is also understood that all utilities will be terminated in the appropriate way and pass proper inspections. To be completed within 10 days of completion of this transaction.

Closing date 16 July 2003

Insert:

The Seller agrees to remove all existing structures from the subject property including foundations & the concrete slab on grade. It is also understood that all utilities will be terminated in the appropriate way and pass proper inspections. To be completed within 10 days after the demolition permit is issued.

Closing date to 25 July 2003

[12] As security for the fulfillment of the condition by the defendant, the parties agreed that the sum of $65,000 would be deducted from the purchase price, and would not be released by the mortgage lender for the plaintiff until the condition had been completed.

[13] On July 24, 2003, an undertaking was given by the plaintiffs and the defendant to the BDC Re: Loan to 10 Minute Oil Stop Inc. and 1581518 Ontario Ltd. as follows:

In consideration of the making by you of the Loan the undersigned hereby undertake as follows:

----to remove the existing structures on the property municipally known as 355 Rexdale Blvd., Toronto, Ontario (the "Property") within thirty (30) days of the date of the issuance of the demolition permit including removal of the foundation and the concrete slab on grade.

[14] On October 2, 2003, counsel for the defendant wrote to plaintiffs' counsel to advise that the undertaking had been complied with and that the amount of $65,000 held in trust be released to defendant's counsel. The funds were not released despite a follow-up request on October 9, and on November 14, 2003, the defendant's property manager, Joseph Robert, confirmed in writing that all work had been completed and requested the funds be released. Additional requests were sent by defendant's counsel on November 20 and December 12. The December 12 correspondence indicated that counsel had attempted to contact the plaintiff who had not returned calls and that there may be some "issues" between the plaintiff and the BDC. He further advised that a vendor's lien had been registered against title to the property and that legal action would be commenced if all funds were not received.

[15] On December 30, 2003, plaintiffs' counsel finally responded indicating that it was his understanding that the parties had agreed that "the demolition is not complete as the basement and footings of the previous structure have not been removed" and that the plaintiffs' mortgagee would not authorize advance of the holdback until this had been done to their satisfaction. He proposed that the defendant attend at the property at an agreed time to complete the removal of the basement and footings in the presence of the plaintiff or his engineer, and upon confirmation from the engineer that the demolition had been completed, the full holdback would be advanced.

[16] On January 14, 2004, defendant's counsel wrote that there was no agreement between the parties about the state of the demolition, but that assuming the plaintiffs' engineer was a licensed professional engineer able to certify that he would do an impartial inspection of the premises, the defendant would attend the premises with the plaintiffs' engineer and the plaintiff, if he wished, in order to establish whether the demolition had been completed in accordance with the Agreement of Purchase and Sale. On January 22, 2004, the plaintiff's counsel communicated that his client was in agreement with the proposal that the plaintiff was to contact his engineer and the defendant in order to make the necessary arrangements, but that the weather and his engineer's itinerary had prevented completion of the inspection. However, the plaintiff did not pursue this further.

[17] The defendant registered a vendor's lien against title to the property in January of 2004, in order to protect her position.

[18] On April 18, 2004, correspondence was sent from Don Conte & Associates Ltd. to the mortgage broker, Skylark Holdings Limited, advising that they had attended at 355 Rexdale to oversee and observe the boring of 10 test holes on the subject site. The test holes were bored for the purpose of determining whether unexcavated foundation walls and footings along the site of the former building's exterior elevations existed on the site as at March 16 or April 14, 2004. The holes were dug to a typical depth of 3 to 4 feet and were examined for traces of building material. It was concluded that there was no evidence of the former subject building's concrete footings.

[19] Documentary evidence adduced by the plaintiff from Starland Contracting to the plaintiffs, Akhras and 158, dated June 9, 2004 regarding additional costs for 355 Rexdale Boulevard indicated an agreement between the parties that $20,000 additional costs were to be added to the signed contract of March 17, 2004 regarding development of the property. An itemized invoice from Starland dated January 10, 2005 addressed to the plaintiffs, Akhras and 158, listed extra work done on the property, including "removing old foundation" for the amount of $2,000. A further undated invoice from Starland to the plaintiffs, Akhras and 158, listed additional work including "extra for work delayed, as agreed with owner, in the amount of $20,000 and "extra soil disposal" in the amount of $7,500, which the plaintiff alleges is attributable to the failure of the defendant to remove the foundations.

The Testimony of the Witnesses

Wa-il Akhras

[20] Mr. Akhras testified that he operated a business at 330 Rexdale Boulevard, which premises he rented, just across from the subject property. He operated a lube shop, 10 Minute Oil Stop Limited. The property located at 335 Rexdale Boulevard, across the street, was vacant and he called the real estate agent to determine whether the property was available for sale, which it was. Mr. Akhras testified that Joseph Robert, the property manager of 335 Rexdale, engaged in the negotiations of the purchase and sale of the property on behalf of the defendant owner of the property. This was denied by Mr. Robert. The defendant, the owner of the property executed the Agreement of Purchase and Sale.

[21] Mr. Akhras testified that the defendant failed to remove the foundations within the 10 days stipulated in Schedule A of the Agreement of Purchase and Sale. He testified that as a result, the closing date had to be extended due to the fact that the defendant was not ready to remove the foundations. In cross-examination, he conceded that there had been an amendment to the Agreement of Purchase and Sale, agreed to by both parties, that the foundations were not to be removed within 10 days of completion of the transaction, but rather were to be removed within 10 days after the demolition permit was issued.

[22] He testified that he was able to watch the trucks from his rental property located diagonally across the street from the subject property as they removed the structure and the foundations, as he was generally at his business across the street from 7 AM to 7 PM. He was the manager of his business, which involved servicing vehicles. His ability to directly view the work being done at 355 Rexdale was challenged, as was the consistency and frequency with which he viewed the work during the time that he was, himself, working in his business. When cross-examined as to his assertion that he would have sat and watched the building across the street all the time while he was working at the lube shop, he maintained that he was able to watch the building all day. He refused to admit that, due to his obligations at work, he would not be able to observe the trucks all day, but maintained that he was able to watch them all day.

[23] He testified that Mr. Robert had hired a crew to remove the structure. As for the foundations, heavy equipment was on site. He stated that there was not a sufficient number of trucks to remove all of the basement and foundations, which made him suspicious. He stated that there was not sufficient material taken from the foundations and loaded onto the trucks to have removed all of the basement and foundation walls. In cross-examination, he conceded that there was no basement. He further maintained that when the foundations were removed from the front of the old structure, they were 12 feet deep. He testified that the building which he had constructed did have a basement.

[24] He further stated that he did not see the heavy equipment driver digging the ground. He stated that the heavy equipment drove on the walls to break them into small pieces, which was mixed into the soil. He stated that this increased the level of the soil which his workers had to subsequently remove by 3 feet. In cross-examination, he conceded that the Agreement of Purchase and Sale said nothing about restoring the grade to level. He further stated in cross-examination that no one had noticed until May of 2004 that there was additional soil such that the grade was not level. He testified that they removed 30 loads of soil due to the increased levels left by the defendant. He stated that this increased the costs of the construction of his own building.

[25] As regards proof that the foundation was not removed, he stated that he had taken photographs, and had given them to the lawyer who represented him when the action became litigious in 2004. He testified that the lawyer later advised him that he did not have photographs.

[26] He stated that due to the length of time it took the defendant to remove the foundations, he was delayed in starting construction of the new building at 355 Rexdale. He stated that it took a total of four months to remove all of the structure and foundations, relying on the correspondence of Mr. Joseph dated November 14, 2013, referenced above. I note, however, from the evidentiary documentation produced in this action that counsel for the defendant had written to plaintiffs' counsel on October 2, 2003 advising that the undertaking had been complied with.

[27] Mr. Akhras stated that he incurred loss and damages due to the fact that it took four months to complete the removal of the foundations, six months to vacate the lien, and 10 months delay in opening the lube center. When asked about the lien, and why he had not had it paid into court in order that the lien could be vacated, he stated that he did not know that this could be done. When asked why that should be the defendant's problem or liability, he was unable to answer. He stated that he lost many customers and that he was claiming $150,000 for business loss. However, he conceded that he had no documentation to establish any financial loss, and would not be pursuing this. He further clarified in cross-examination that 158 was his company, but that the lube business was actually operated by his wife's company, which is not a party to this action. He stated that the business losses were those of his wife's company. He did not produce any financial documents from his business. He stated that the lube centre at 350 Rexdale Boulevard had closed in November of 2003. He stated that the contract price of his construction increased by $20,000 for work delayed, plus $7,500 for extra soil disposal and $2,000 for removing the old foundation, relying on invoices from Starland Contracting Inc. to himself at 158. He had originally alleged breach of the Agreement of Purchase and Sale as regards provision by the defendant of the survey, but conceded in cross-examination that he was not pursuing this. In the end, he conceded that he was only pursuing damages in the amount of $20,000, $7,500 and $2,000, plus interest paid to BDC for the delay.

[28] As regards Don Conte, who attended at the property for purposes of having holes bored to determine whether any foundation remained, and concluded that no foundations remained, Mr. Akhras asserted that Mr. Conte was not an expert, had no expertise in determining whether there were foundations, and that he had not been apprised that Mr. Conte would be present on the property. It appears from Mr. Conte's report addressed to Skylark Holdings Limited, the mortgage broker for the subject property that Mr. Conte was reporting to them. There is no direct evidence of who actually retained him. I was advised that Don Conte was not available to testify. No one had summonsed him to testify.

[29] As regards removal of the foundations allegedly left by the defendant following closing, the plaintiff was unable to produce evidence from the contracting company, Starland Contracting Inc. He advised that Starland had gone out of business and he was unable to locate any of the former employees. As regards the damages sought by the plaintiff, he was unable to produce his business or financial records to establish that such amounts had been paid.

[30] While he alleged that all of the delays were occasioned by the defendant's conduct, he admitted in cross-examination, that he knew by early October that it was the defendant's position that the foundations had been removed. However, he did not do anything at the time to verify whether the foundations had been removed by contacting an engineer or someone who could verify this. He introduced documentation from BDC which he maintains is evidence of the fact that Starland was paid for extras for removal of the foundations by BDC, which then withdrew the money from his account.

Khaled Alsayed-Hasam

[31] Khaled Alsayed-Hasam was called by the plaintiff as an expert witness. Mr. Alsayed-Hasam is a professional engineer, with a PhD in technical sciences and structural engineering from Moscow Civil Engineering Institute, obtained in 1992. He immigrated to Canada in 2001 and has been licensed in professional engineering in Ontario since 2009. He graduated in and practices in structural engineering. He was qualified as a professional engineer in structural engineering for purposes of these proceedings. He produced an Expert Report, dated February, 2014. His Report and testimony were based on a review of all of the architectural and structural drawings related to the subject property. He had not been to the site of the subject property.

[32] He testified that footings are required to rest on undisturbed soil, and must be a minimum of 4 feet below final grade, due to frost heave, as required pursuant to Ontario legislation. If the soils are weak or if there is backfill, the footings may have to go deeper to reach the natural, original soil. The subject property and the building thereon must be constructed pursuant to the approved architectural drawings and must have a minimum 4 foot foundation. It is possible that foundations could go deeper, but they cannot be less than the minimum required of 4 feet. Only the footings are subject to frost and the 4 foot minimum requirement. In the subject building, this would mean the outer perimeter.

[33] In cross-examination, he testified that there was no basement in the building on the subject property, such that there were only footings around the perimeter and under columns. Column footings would be smaller than the perimeter footings. Footings are the equivalent of foundations. He confirmed that footings can be more than 4 feet deep, but with respect to the subject foundation/footings, he did not know the depth. If all of the footings had been removed, the "foundation" would have been removed. In order to determine if footings had been removed, he confirmed that generally one would drill bore holes to see if the footings exist. If one knew where the footings were, bore holes could be drilled. It would be more accurate to do the drilling with a survey to show the perimeters of the building.

[34] Mr. Alsayed-Hasam had not been provided with as-built drawings for the structure as it existed as of the date of the Agreement of Purchase and Sale and had not visited the property. He testified that while the available structural drawings that he had reviewed showed the size and thickness of the reinforced concrete strip and isolated footings on which the building rested, there was no information regarding the depth of the footings to be found on any of the structural drawings and, therefore, he was unable to determine the actual depth of the footings. Thus, all that he was able to state was that the exterior strip footings, which were the only ones subject to frost action, should have been to a minimum of 4 feet below the final grade.

Joseph Robert

[35] Joseph Robert, aged 60, was born in Quebec, but raised in Honduras from the age of two years until he was 29, when he returned to Canada. He has worked in construction since the age of 16, commencing his work in Honduras. In Canada, he has worked, steadily, in the construction and demolition of buildings.

[36] At all material times, he had a general maintenance license, a demolition license, and also had insurance.

[37] He has known the plaintiff and her husband for over 20 years. He worked for the plaintiff in their hotel in Kincardine, Ontario, doing maintenance, roof repairs in the restaurant and sushi bar when they needed him.

[38] Mr. Kim had introduced him to the owner of O'Toole's Restaurant, which was previously located in the subject property. He did some work in the Restaurant while it was viable, before it burned. He repaired and renovated the subject property, but the owners subsequently ran out of money and sold the premises to Ms. Kim. He continued to work on the property, collected rent, worked on the roof and did other maintenance as needed. The tenant in the subject property ran a strip joint, although the couple had represented that they were starting a restaurant. He collected the rents. The tenant left overnight and took everything. At that point, Ms. Kim decided to sell the property and it was listed for sale.

[39] When asked whether he was aware if the building had a mortgage, he stated that he was not, and that was not his job. When asked about Skylark Holdings Ltd, he stated that he understood that to be the company that put up a loan, although he did not know that it was a mortgage. His job was as property manager, doing maintenance and repairs and collecting rents.

[40] As regards the Agreement of Purchase and Sale, he did not negotiate the Agreement, nor did he sign it. This was done by the Kims. He was aware that there was a clause to remove the foundations, and it was he who did the demolition, with a crew that he hired.

[41] He stated that the purchaser, Mr. Akhras rented the building and ran a lube shop across Rexdale Boulevard. He stated that there were no doors facing on Rexdale from the rented property, although there were windows onto Rexdale. He could not say what the view would have been from those windows while the plaintiff rented the premises.

[42] As regards the demolition, he testified that a permit was required, that he applied for the required demolition permit, which took approximately two weeks to obtain. He stated that he obtained the demolition permit sometime in August, but did not remember when. The demolition began in September of 2003 and was completed before the end of September. This date is consistent with the letter dated October 2, 2003 from the defendant's counsel to the plaintiffs' counsel advising that the undertaking had been satisfied. He stated that he hired a crew to assist him and that they were there all day for approximately one week.

[43] In terms of how the building was demolished, he testified that he disconnected the water, gas, Hydro, and then disconnected the HVAC on the roof. He testified that he dismantled the HVAC and sold the parts and other parts of the building for scrap. He testified that he had to remove the interiors, the bathrooms, then remove the drywall, concrete blocks and steel. He stated that a Mennonite community came to dismantle the building and take the roofing, the 22 gauge steel from the roof and the wood from the building. During a period of three days, they took down the roof and all wood in the building. Mr. Robert took the balance of the metal for scrap. His description of the demolition was very detailed.

[44] As regards the foundation, he retained a heavy equipment operator, Bill, with an excavator and bucket. He testified that Bill had since died, in March of 2007.

[45] Mr. Robert testified that Bill helped with the demolition of the building and removed the foundations over a three-day period. Bill removed the concrete floor using the excavator and bucket. He testified that the concrete was approximately 3 to 4 inches thick. The concrete blocks were taken down, put in the middle of the floor and then scooped up with the excavator bucket and put into Bill's truck to be hauled away for recycling. Bill then proceeded to dig up and remove the footers around the perimeter of the building, using the excavator and bucket. Digging and removal of the footers stopped when there was no more concrete, only dirt left where the footers had been. Mr. Joseph testified that when they reached natural dirt, the hole was filled up with the dirt, which was backhoed into the holes. He stated that when they pushed the dirt into the holes where the footers had been, they could see it sink into the holes that had been left when the footers were removed. He testified that Bill's work lasted three days, one day for removal of the blocks; one day to remove the footings and one day for dumping of all of the foundation and footing material and concrete. They left only dirt mixed with some stone, left from the broken concrete blocks, which was used to fill all the holes where the demolition had occurred. The ground was not perfectly leveled, but was, at most, 16 inches above-grade, but certainly not 3 feet (36 inches) as the plaintiff maintained. The condition in the Agreement of Purchase and Sale does not stipulate a required leveling of the grade after demolition and removal of the foundations and concrete slab on grade.

[46] He testified that he paid all three of the crew who had helped with the demolition in cash.

[47] Mr. Joseph testified that during the demolition, the plaintiff did not attend at the premises. However, he came over once the demolition had occurred and told Mr. Robert and Bill to remove a tree that remained to the north of the building. Mr. Robert instructed Bill not to do this, as they needed a permit in order to remove trees. However, when he was absent, the plaintiff apparently instructed Bill to remove the tree, which he did.

[48] He stated that the work was completed in late September of 2003 and that he did not speak with the plaintiff or receive communication from the plaintiff thereafter.

[49] He did not return to the property until the spring of 2004, when he was requested to attend at the property to meet a man, who he understood was from the bank. The man he was to meet, who he later learned was Mr. Conte was to do boring of holes in order to determine whether there were any foundations left. He did not know whether the man was working for Mr. Kim or the plaintiff. He was simply asked to go to the jobsite to do some digging, which he did. Mr. Joseph was asked to do the digging with an auger which he described as being approximately 10 inches around and 4 feet long with a 2 foot drill bit extension. He was able to do the boring with the assistance of another man. The person from the bank advised him where to drill. The man had surveys and drawings of the property, did measurements on the ground, placed sticks where holes were to be bored and told him where to drill. They drilled 8 to 10 bore holes approximately 6 feet deep each. Mr. Joseph stated that the places where he was told to drill were essentially the places where he had removed the footers. He was told to remove top soil and debris first and then drill. They found nothing. He said he never saw the man again, until that morning in court, identifying Don Conte who had attended the trial to testify, but had not been reached that day and was not available to testify thereafter. It appears that Don Conte is from Skylark Holdings, and was being called as regards the amount of $65,000 held back, representing the vendor's lien.

[50] Mr. Joseph testified that the plaintiff did not call him or communicate with him in any way during this time.

[51] Mr. Joseph clearly stated again that he had removed all of the structures and footers on the subject property.

Credibility

[52] This is, to a great extent, a fact-based case, with credibility as a significant issue. The evidence on most material points is significantly divergent.

[53] In assessing the credibility of the witnesses in this case, I am guided by the observations made by D. Brown J. in Atlantic Financial Corp. v. Henderson et al, [2007] 15230 (SCJ), as follows:

In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[54] Additional factors to take into account when assessing a witness’ credibility include the presence or absence of evidence contradicting a witness’ statements and corroborative evidence: Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), pp. 527-8.

[55] I often found the plaintiff's evidence to be inconsistent with the documentation adduced, and in some cases contradictory. In cross-examination, when confronted with inconsistent documentation, he attempted to justify or explain away his previous answers, became evasive or, stated simply that he did not recall. He often failed to explain his answers when confronted with conflicting documentation. I found his evidence to be unreliable.

[56] In contrast, I found the evidence of the defendant's representative, Mr. Joseph, to be candid, forthright and credible. It was consistent with the evidence that was adduced in this trial.

[57] Where the plaintiff's evidence differs from that of the defendant's witness, I prefer the evidence of the defendant's witness.

Analysis

[58] I will analyze the evidence before this Court in determining the issues, as set forth at paragraph 9, supra.

Did the Defendant Fail to Remove the Basement and Foundation of the Subject Property, As Alleged?

[59] Based on the evidence, including that of the plaintiffs' own expert, there was no basement at the property, but only a concrete slab on grade and footings on which the building rested. There is no evidence to suggest otherwise.

[60] Based on the evidence of Mr. Robert, as well as that of the plaintiffs' expert, Mr. Alsayed-Hasam, and the documentary evidence adduced, I am satisfied that the concrete slab on grade and footings were removed pursuant to the condition contained in the Agreement of Purchase and Sale. There is no sufficient or credible evidence to the contrary.

[61] While the plaintiff maintained that the foundations were not removed, he took this position in 2003, based on his observations and assumptions as regards the removal of debris by the trucks from the property. I do not find his observations as regards watching the subject property all day from his business, which was located diagonally across the street, during the demolition and removal of debris as credible. Moreover, the assumptions which he advanced in his testimony were that there were not sufficient trucks to remove all of the debris from the basement on the property. Based on the evidence, I have found that there was no evidence to suggest that there was indeed a basement on the property, but rather that there were only a concrete slab on grade and footings to be removed. Thus, any assumptions which he may have made and which he asserted in this trial were unfounded.

[62] I further note that when he took his position in 2003 that the foundation had not been removed, he had not, at that time, commenced excavations for the construction of his commercial building on the property, which is when, pursuant to his evidence, it was discovered that concrete foundations remained. He therefore took this position without any concrete evidence, but rather only on the above-mentioned assumptions.

[63] Mr. Akhras never retained an expert to test the soil at the property, nor to document in any way that concrete foundations remained on the property. While he maintained that it was his contractor who uncovered the alleged concrete foundations remaining, he called no evidence to support this contention, nor did he produce any photographs or other proof that such concrete foundations existed. Indeed, there was no evidence of any concrete slab or foundation on the site in the fall of 2003, following removal thereof by the defendant.

[64] Other than an invoice from a construction company for which no witnesses were called and which listed extra soil disposal, there was no evidence. Indeed, there was no evidence of any work that was done with respect to any foundations which remained on the site.

[65] I further note that the plaintiffs' expert, Mr. Alsayed-Hasam, while he was unable to testify that there were any concrete footings that remained on the property, did testify that the testing procedures that were conducted by Mr. Conte, with the assistance of Mr. Robert, were appropriate in order to determine whether any concrete footings remained. I accept this evidence and that of Mr. Robert as regards the lack of any footings remaining after demolition of the building and removal of all debris.

Did the Plaintiff Sustain Any Losses or Damages Attributable to Any Acts or Omissions of the Defendant?

[66] While I have found no liability or breaches of contract on the part of the defendant, I will nevertheless comment on the plaintiffs' claim for damages. I find, based on all of the evidence, documentary and viva voce, that the plaintiff did not sustain any losses or damages attributable to the defendant's acts or omissions.

[67] As regards alleged business losses, the evidence is that the plaintiff's business did not operate the lube shop which allegedly sustained a loss of income/profit. Rather, the lube shop was operated by a company owned by the plaintiff's wife that was not a party to this action. There was no documentation, no business records or financial statements that were produced by the plaintiffs to support any claim for damages related to business loss or profit and, in the end, the plaintiffs did not pursue this claim.

[68] At the end of trial, the plaintiffs only sought damages for the alleged removal of the foundations/footings, the above-grade level debris which was left, and for alleged delays in opening the business occasioned by the plaintiff due to the defendant's actions.

[69] As regards the claim for the amount of $20,000 which was allegedly incurred due to a "delay payment" charged by Starland Contracting Inc., the plaintiff alleges that this amount was incurred due to the failure to remove concrete foundations on the property and the subject requirement to have the foundations removed by the plaintiffs' own contractor. It is the position of the defendant that this could not possibly have been attributable to any acts or omissions of the defendant. The defendant maintains that between the time that the defendant's work was done in October of 2003, and the vendor's lien was placed on the property in December of 2003, at which point the plaintiff had already taken the position that concrete footings were not removed from the property, and the date of the Starland charge for "extras" namely March 17, 2004, the actual site conditions would already have been known to Starland and would not have been quoted later as an "extra". In this regard, I agree with the submission of the defendant. Moreover, however, I am of the view that there was no evidence to support any link between the removal of what is purported to be "extra soil" and any actions on the part of the defendant. I accept the evidence of Mr. Robert that, firstly, there was no condition requiring leveling of the property to grade and, further, there is no evidence to support the plaintiffs' contention that, after demolition, the grade of the property was 3 feet higher than the original. I accept Mr. Robert’s testimony that it was a maximum of 16 inches higher. Further, there is no evidence that the amount sought as damages was ever paid by the plaintiffs.

[70] Further, as regards any argument concerning delay on the basis of the vendor's lien being on title, the plaintiff took no steps to have that lien removed by having the monies paid into court in order that he could obtain the necessary advances of funding and commence work on the property. Any potential delay was due to his own inaction and not to any action on the part of the defendant. Moreover, there is no evidence to suggest that he took steps to mitigate any such damages.

[71] As regards the plaintiffs' claim for $7,500 for disposal of extra topsoil by Starland, again, there is no evidence that this is related, in any way, to any acts or omissions on the part of the defendant. Again the defendant submits that the quote was dated May 8, 2004, while all of the defendant's demolition work was completed by the end of September, 2003, such that the status of any "extra soil" on the property would have been fully evident and observable at the time of the Starland contract. Again, I accept that argument. Further, there is no evidence that this contract or quote was ever paid by the plaintiff.

[72] As regards the plaintiffs' claim for $2,000 for removal of the old foundation, which appears on a Starland invoice for extras dated January 10, 2005, again, there is no evidence from Starland with regard to what was removed, nor any evidence that the amount claimed was ever paid by the plaintiffs.

[73] Even had I found that there was a breach of the conditions set forth in the Agreement of Purchase and Sale, which I have not found, the plaintiff has failed to prove any actual, out-of-pocket expenses or losses in connection with the alleged breach of the conditions. There are no losses which have been proven.

Conclusion

[74] Based on all of the foregoing, I find as follows:

1. The plaintiff's action is dismissed;

2. Judgment is granted in favour of the defendant on the crossclaim and this Court declares that the defendant has satisfied the conditions necessary for and is entitled to payment to her of the balance of the purchase price, namely the amount of $65,000 plus all accrued interest thereon, currently paid into Court to the credit of this proceeding;

3. The funds specified above are to be paid out of Court forthwith to the defendant.

Costs

[75] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: February 20, 2015

CITATION: Akhras et al. v. Myung-Hwa, 2015 ONSC 984

COURT FILE NO.: 04-CV-271734CM2

DATE: 20150220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wa-il Akhras and 1581518 Ontario Ltd., Plaintiffs

AND:

Kim Myung-Hwa a.k.a. Myung-Hwa Kim, Defendant

REASONS FOR JUDGMENT

Carole J. Brown, J

Released: February 20, 2015