Court File and Parties
Court File No.: 11-4705-A-SR Date: 2016-05-02 Ontario Superior Court of Justice
Between: Lisa Blundon and Luke Blundon, Plaintiffs - and - Ashton Pools, Ponds and Spas Inc., Defendants - and - Benco-Concrete Inc., Third Party
Counsel: Judy Fowler Byrne, Counsel for the Plaintiffs Jarvis Postnikoff, Counsel for the Defendants Harjinder Mann, Counsel for Third Party
Heard: January 25-29, February 1, 2016
Before: The Honourable Mr. Justice P.B. Hambly
Judgment
[1] This is a claim brought by homeowners against a swimming pool installer for breach of contract in relation to a pool that it installed in their backyard.
Background
[2] Luke Blundon and Lisa Blundon (“the Blundons”) own a house on a lot at 236 Michener Crescent in the City of Kitchener (“Michener”). Jim Ashton (“Ashton”) is the owner of Ashton Pools, Ponds and Spas Inc. (“Ashton Pools”).
[3] On May 15, 2009 the Blundons met with Ashton at the showroom of Ashton Pools. At that time Ashton Pools and the Blundons entered into a contract for Ashton Pools to install a swimming pool with accessories in the backyard at Michener for $141,154.97. The contract also provided that Ashton Pools would construct a concrete patio of 1,530 square feet around the pool up to the back of the house under an overhanging deck supported by posts. Ashton Pools entered into a contract with Benco Concrete Inc. (“Benco”) dated September 8, 2009 to pour the concrete for the patio around the pool. Sheldon Benson (“Benson”) is the principal of Benco. The contract price was $15,141.00 subject to adjustments. It obtained the concrete from Cross Country Concrete (“Cross Country”).
Installation of the Pool and Patio
[4] The pool was installed and cement poured in August and September 2009. Ashton Pools delivered a prefabricated fibreglass pool to Michener on August 8, 2009. It hired a crane to lift the pool over the house at Michener and to deposit it in the backyard. A foot of the crane supported by planks rested on the driveway at Michener for 8 hours. After the crane left the driveway, a water main where the foot of the crane had been resting popped up creating a hazard in the driveway. In April 2010 the Blundons replaced the driveway at a cost of $4,284. Benco arranged for trucks from Cross Country to deliver the concrete for the patio on September 10, 2009. It delivered four loads of concrete. Benco employees supervised the pouring of the concrete into forms around the pool. It levelled and finished the concrete on September 11, 2009. They also placed saw cuts in the concrete on September 11, 2009. They performed their work as directed by Ashton. Cracks appeared in the patio around the pool in the winter which the Blundons noticed in February, 2010.
The Lawsuit
[5] The Blundons commenced an action against Ashton Pools on September 1, 2011 in simplified procedure based on allegations of breach of contract. They claim damages for the cost of replacing the portion of the patio with cracks and ancillary items. Ashton Pools filed a statement of defence and counterclaim dated October 28, 2011. It denies that it breached the contract. It counterclaims for extras that it alleges it supplied pursuant to an oral agreement. These consist of some fencing at a charge of $3,385 and in-ground deck box at a charge of $2,680. It also claims the sum of $1,500 owing on the contract. The Blundons agree that Ashton Pools should get credit for the fence. They take the position that the in ground deck box is necessary to protect the solar blanket and was part of the contract. The Blundons admit that $1,500 is owing on the contract. They seek to set off the $1,500 against other items that they allege Ashton either failed to deliver or provided at a lesser standard than required by the contract. Ashton Pools commenced a third party action against Benco on November 7, 2011, in which it claims contribution and indemnity from Benco, for any damages which may be awarded against Ashton Pools. Cross Country was not sued. Witnesses at the trial were the Blundons, Ashton, Benson, Lucas Strauss, who provided an estimate of the cost of repairing the patio, and three experts.
The Contract
[6] The contract is a three page document on Ashton Pools stationary. The first page states that the contract is between Lisa and Luke Blundon and Ashton Pools. It is signed by Lisa Blundon and dated May 15, 2009. Although it is not signed by Luke Blundon there is no issue that he is a party to the contract. There is a schedule which sets out that $28,230.99 is to be paid on the signing of the contract, $111,423,98 on the arrival of the pool hull at the job site and $1,500 when equipment is connected to the swimming pool plumbing. The Blundons have paid these amounts to Ashton Pools, with the exception of the $1,500. ($1500.01)
[7] Under the heading Comments/Addendum are six items which Ashton Pools agreed to provide, including a hot tub which is shown on page 1 of the contract at a cost of $12,000. Ashton showed the Blundons a hot tub in the show room of Ashton pools on May 15, 2009 which he represented as the hot tub that they would receive under the contract. It had special features including a radio. The hot tub that that Ashton Pools installed did not have some of the special features including the radio.
[8] On the second page in small print under the heading Conditions of Contract are 16 numbered clauses. Under the heading Limited Warranty are five unnumbered clauses. There are single clauses under the headings Contract Changes, Equipment and General Provisions. Ashton Pools relies on clauses on page 2 of the contract to exempt it from liability to the Blundons as follows:
Conditions of Contract:
Contractor shall not be responsible for damage to any part of the pool structure, equipment or installation resulting from natural causes or an act of God, including, but not limited to earthquake, ground swells, foundation, ground and/or hillside motion, landslide or natural or accidental cause or peril resulting from storms, flood, war or riot nor is the Contractor liable for damages caused by surface drainage around the pool. The Contractor also shall not be liable for damage caused by the Owner or his Agents.
Contractor is not responsible for damage to patio, driveways, lawns, trees, plants, shrubs, fences, sprinkler systems or sewers which result from normal ingress and egress to the job site by trucks and equipment.
Owner shall be responsible for site preparation, including removal or protection of trees or other vegetation and removal of pipelines or other improvements affected by this construction, and shall be responsible for any landscaping or restoration of the grounds. Contractor shall not be responsible for damage, to existing driveways, lawns, shrubs, flowers, trees, sprinkler systems or other property, as a result of this installation.
Owner is advised that soil testing should be performed and is the responsibility of the Owner. The Owner holds harmless and indemnifies the Contractor for any such condition or resulting damages to the pool or surrounding area caused by soil conditions.
Limited Warranty:
Contractor warrants, to the original Owner, that its work meets or exceeds existing Building Department Codes and is free from defects in material and workmanship for one year from completion of such work, and if any defects should occur within such time, shall remedy same without cost to the Owner provided said Owner has complied in full with terms of payment and other conditions of this agreement and has within the warranty period notified this contractor of such defects in writing. Notice should be sent to Seller at address on reverse side. Purchased assemblies or material processing used in this installation are subject to the manufacturer’s or processor’s warranty. Contractor shall not be responsible for the cost of removal or replacement of manufacturer’s products after one year from date pool is filled.
Damages caused by Acts of God, neglect or improper maintenance is specifically excluded from this contract.
Equipment:
Contractor reserves the right, without notice, to substitute any of the accessories and equipment agreed upon, for comparable equipment or accessories of equal quality or better, having at least the same functionality, usability and utility.
Contract Changes
Any deletion or additions to this agreement must be in writing and signed by all parties hereto and the appropriate expense for said charges shall be reflected accordingly. The contract, and any written addiions thereto, constitute the entire agreement between the Owner and the Contractor, and no other provisions, expressed or implied, shall be binding. If any portion of this contract is found to be illegal such finding does not void the balance of the contract.
Ashton did not draw the attention of the Blundons to these clauses on May 9, 2009. The Blundons did not read page 2 of the contract before Lisa Blundon signed it.
[9] The third page is headed Appendix A - Customer Summary and Pool Detail Sheet. It lists a number of items which Ashton Pools agreed to supply, including a ¾ HP pump with filter, a 300,000 BTU heater, a deluxe kit of maintenance equipment and a solar blanket roller. At the showroom Ashton showed the Blundons an in-ground deck box that went with the solar blanket. He did not advise the Blundons that there would be an extra charge for this item. The pump that Ashton Pools provided had a used filter. The heater that it provided was a 200,000 BTU heater and the maintenance equipment that it provided was used. The maintenance equipment included a drainage hose that was too short. Ashton Pools’ workers broke a latch on a gate at the side of the house and did not install a proper latch on the Cabana. The cost to install or replace these items is nominal.
[10] The Blundons introduced evidence that they replaced a faulty jet which caused a water leak at a cost of $395.50, water bills increased by $241.32, as a result of the leak and that they were required to replace the pool cleaner at a cost of $846.37.
The Cracking of the Patio
[11] Attached hereto and marked Exhibit “A” is a sketch of the lot at Michener showing the cardinal directions, the locations of the house and pool, the location of the cracks in the patio between the pool and house and at the eastern end of the solar blanket roller, the jacuzzi or hot tub, immediately to the west of the house on the north side, the drain on the east side of the pool and the cabana at the north west corner of the lot.
[12] The Blundons first noticed the cracking in the concrete patio in February 2010. It has become worse over time. Some of the cracking consists of one portion of the concrete rising above the other portion of the concrete on the other side of the crack. This is known as differential cracking.
[13] There is a porch at the back of the house supported by posts extending out into the backyard. The cracking is concentrated in one area on the north east between the Jacuzzi and the house extending from the house under the porch beyond the edge of the porch to the drain towards the eastern edge of the pool. It is concentrated in another area in the south east extending from the back of the house beyond the edge of the porch towards the eastern edge of the pool.
Evidence of the Engineers
[14] Three engineers – Jeremy Bishop and Geoff Lay for the Blundons and Stephen Blaney for Ashton Pools - who were qualified as experts in the field of concrete construction provided reports and testified as to the nature and cause of the cracking. They were agreed in general as to what causes hardened concrete to crack.
[15] Concrete is poured in liquid form horizontally on the ground, in this case to create a patio. When it is poured it consists of water, cement and sand. When the water evaporates, the cement and sand remaining harden to form concrete. The hardened concrete will necessarily occupy a lesser volume than the liquid concrete. This can result in cracking of the hardened surface. If there is too much water in the mixture that is poured the tendency for the concrete to crack will increase because the shrinkage of what remains after the water evaporates will be greater. The amount of water in the mixture can be determined by a slump test. This is a simple test done by placing a sample of the liquid concrete in a cylinder. If the proportion of the volume that sinks to the total volume is too small there is too much water in the mix. The driver of the cement mixer truck who delivers the concrete to the site to be poured should perform a slump test to determine that the amount of water in the mixture is appropriate. If there is too much water there can be a delay until some of the water has evaporated. If there is too little water some can be added. It is impossible to determine, after concrete has hardened how much water was in the original mixture.
[16] If the liquid concrete is poured on a base that is impervious to water, the water will accumulate under the concrete. The base may also absorb and hold water in it. When the temperature drops in the winter the water under the concrete will freeze and expand. The water absorbed by the base will form ice crystals. It will also freeze and expand. This can cause the concrete to crack.
[17] Cracking in poured concrete can be controlled by placing saw cuts in the concrete when it has become firm. In this case the concrete was about 4” thick. These cuts in the concrete are called control joints. Saw cuts should be placed at intervals about 25 times the thickness of the concrete slab. These control joints give the concrete room to expand without cracking. Benco employees, at Ashton’s direction, placed control joints in the concrete after it had dried. Contrary to Benson’s recommendation Benco’s employees on Ashton’s directions did not place saw cuts between the posts supporting the porch on the east side of the pool. This is the location of many of the cracks in the patio.
[18] Mr. Bishop attended at Michener on April 24, 2012. He noted that there were control joints or saw cuts in diamond shapes around the posts supporting the porch. There were no control joints or saw cuts between the posts. He thought that there should have been.
[19] There is cracking at the east end of the solar blanket roller. In this area some portions of the surface of the concrete have become detached. After they pour concrete the installers level it with trowels. If they work the mixture excessively in levelling it the sand can become separated from the cement. When the water evaporates this can result in the sand that remains falling away or flaking. This is a phenomenon known as spalling. This is what appears to have happened at this location.
[20] Mr. Bishop was of the opinion that “the cracks observed in the patio were caused by excessive water in the concrete mix at the time of installation in combination with poor installation techniques employed by the contractor”. (page 2 of his report dated May 22, 2012)
[21] Mr. Lay attended at Michener on May 26, 2015. While he was there, two slabs of concrete were removed from the patio, each about 3’ x 3 1/3’. One is designated as Test Pit 1(TP 1 on Exhibit “A”) located near the drain between the edge of the pool and the house. The other is designated as Test Pit 2 (TP 2 on Exhibit “A”) located at the west end on the north side of the solar blanket roller. Each pit was excavated to a depth of 1 1/3 feet. The slab from TP 1 had a thickness of 4”. The slab from TP 2 had a thickness of 4.5”. Under each slab was a void of about 2/3 inches. The slab was not in contact with the soil. This meant that the slab had moved after the concrete had set.
[22] At TP 1 the base material on which the concrete had been poured was a reworked brown sandy clayey silt till. It was about 7” in depth. Under this layer was native undisturbed grey clayey silt till. Ashton Pools had excavated the native soil to install the pool, reworked it, placed it on top of the undisturbed native soil and laid the concrete on top of it. At TP 2 the base material was a brown sand and gravel fill. It was about 4” thick. It would have been placed there by Ashton Pools. Under the base material was a layer of native brown sandy clayey silt.
[23] Clayey silt is not suitable as base material for concrete. It has low permeability with poor drainage properties. It may experience intolerable volume changes due to changes in moisture content. It is susceptible to expand or heave and grow ice lenses in the presence of freezing temperatures. The frozen water in the clayey silt causes any water in the unfrozen soil beneath the clayey silt to migrate upwards, which creates more ice and more expansion of the clayey silt. This increases the movement of, and upward pressure on the concrete slab.
[24] The soil around the drain was clayey sand. It was easy to remove by hand. This suggested poor compaction which would cause settlement.
[25] Mr. Lay’s opinion was that frost heave was likely the dominant cause of the cracking, resulting from the concrete being placed on a clayey silt base. A secondary factor was poor compaction, particularly around the drain. The cracking could have been avoided by using base material consisting of free draining granular material such as sand and gravel. This is what Ashton Pools did in the area around TP 2, where the patio did not crack. I accept Mr. Lay’s opinion.
Conclusion
[26] The base material which Ashton employees placed on the ground where the concrete was poured in the area of the cracking was inadequate. It was clayey silt that they had excavated to install the pool, reworked and deposited there. It was impervious to water. Water accumulated in the void under the concrete. The water that did seep into this material stayed in the material. It froze and expanded in the winter which caused the concrete above it to crack. The material that should have been used and was used in the area of TP 2 where there was no cracking was free draining material such as sand and gravel. Benco on Ahston’s direction placed insufficient control joints or saw cuts in the south east corner around the posts supporting the deck. This also contributed to the cracking. Spalling caused the concrete to break away at the east end of the solar blanket. Benco employees are responsible for this. The amount of spalling, however, is insubstantial.
[27] The concrete mix was delivered in four loads. Since there are some areas of the patio that are free of cracking, all the concrete mix cannot have had too much water. Cross Country was not sued. No one from Cross Country was called to testify. No evidence was introduced as to the amount of water that was in the concrete mix when Cross Country delivered it to the site. The evidence was that cracks resulting from too much water in the concrete mix will appear within 72 hours of the concrete mix being poured. There was no evidence of cracks appearing within that period of time. I find that too much water in the concrete mix that was delivered to Michener was not a cause of the cracking in the patio on which the Blundons base their claim.
Ashton Pool’s Liability To the Blundons for Breach of Contract
The Cracking of the Patio
[28] The Blundons first observed the cracks in February 2010. These are the same cracks that have worsened and are in place today. They have become larger. Some have become differential cracks. It is the material supplied or not supplied and the work done or not done by Ashton Pools and Benco on Ashton’s direction that is responsible for the cracking. It is a term of the contract that Ashton Pools shall not be liable for work performed or materials supplied by any subcontractor who has not been contracted by it. By necessary implication, it must be liable for the work performed and materials supplied by a subcontractor with whom it has contracted. The evidence is that Ashton directed the work of the Benco employees. Ashton Pools is, therefore, liable for the work of Benco.
[29] The evidence was that a properly constructed concrete patio should last for 20 to 30 years. This patio lasted about 6 months before unacceptable cracks appeared. Ashton Pools has breached its warranty that its work be “ free from defects in material and workmanship for one year”. There is an implied term of the contract as follows:
There is an implied term that the contractor will perform duties diligently and in a workmanlike manner . This rule applies to work done before as well as after a contract has been entered into, so that a subsequent purchaser can rely on it (Canadian Encyclopedic Digest at. 1.3.(c)(iii) para. 39 regarding Construction Contracts - emphasis added)
Ashton Pools has also breached the implied term of the contract that it will perform its duties diligently and in a workmanlike manner. Ashton Pools must be liable for the damages to the Blundons that flow from its breach of the contract by installing a patio around the pool which cracked unless the exemption clauses in the contract apply.
[30] In Tercon Contractors Ltd. v. British Columbia, 2010 SCC 4 the Supreme Court of Canada in the judgment of Justice Binnie said the following:
122 The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence. This will depend on the Court's assessment of the intention of the parties as expressed in the contract. If the exclusion clause does not apply, there is obviously no need to proceed further with this analysis.
[31] Water finding its way below the concrete surface could not be found to have occurred as a result of an act of God or by natural causes such as hurricanes. Water that seeped below the surface of the concrete may have drained from the lot around the house to the east of the pool. It may have come through the saw cuts. It would have disappeared if the base material had been proper free draining material. Instead it pooled there on top and in the clayey silt base, froze, expanded and caused the patio to crack.. The Blundons contracted Ashton Pools to construct a patio that would withstand normal weather conditions and repel water. The exemption clauses cannot exempt Ashton Pools. If they did “It would be a commercial absurdity that Ashton Pools would be exempt from liability for the very thing that it was hired to do.” (para. 91 of plaintiff’s closing submissions)
[32] Clause 10 required the Blundons to do site preparation and clause 12 required them to do soil testing. The Contract Changes clause required that changes in the contract be in writing. Ashton Pools did the site preparation and it did the soil testing. Ashton Pools and the Blundons entered into an oral contract for Ashton Pools to construct an iron fence for $3,385, which Ahton Pools did.
[33] In Jedfro Investments v. Jacyk, [2006] O.J. No. 1963 the Court of Appeal in the judgment of Justice Laskin stated the following:
11 … Where parties act in a way that shows they do not intend to comply with or be bound by the terms of their written agreement, one party cannot later come to court and ask to have the agreement enforced for its benefit. Enforcing the written agreement in these circumstances would be contrary to the intention of the parties, as evidenced by their conduct. See Shelanu Inc. v. Print Three Franchising Corp. (2003), 226 D.L.R. (4th) 577 at 595-6 (Ont. C.A.) .
[34] The Blundons did not read page 2 of the contract. Ashton did not draw to their attention the provisions of the contract that Ashton Pools now wants to enforce. In Tilden Rent-A-Car Company v. Clendenning, [1978] O.J. No. 3260 the Court of Appeal considered whether a person who signed a contract to rent a car from Tilden was bound by onerous terms of the contract in fine print which he had not read. In the judgment of Justice Dubin, the Court of Appeal stated the following:
33 In the case at bar, Tilden Rent-A-Car took no steps to alert Mr. Clendenning to the onerous provisions in the standard form of contract presented by it. The clerk could not help but have known that Mr. Clendenning had not in fact read the contract before signing it. Indeed the form of the contract itself with the important provisions on the reverse side and in very small type would discourage even the most cautious customer from endeavouring to read and understand it. Mr. Clendenning was in fact unaware of the exempting provisions. Under such circumstances, it was not open to Tilden Rent-A-Car to rely on those clauses, and it was not incumbent on Mr. Clendenning to establish fraud, misrepresentation or non est factum. Having paid the premium, he was not liable for any damage to the vehicle while being driven by him. 34 As Lord Denning stated in Neuchatel Asphalte Co. Ltd. v. Barnett, [1957] 1 W.L.R. 356 at p. 360 : "We do not allow printed forms to be made a trap for the unwary."
(see also Shelanu v. Print Three Franchising Corp., [2003] 64 O.R. (3d) 533 at paras. 58-59)
I find that the exemption clauses in the contract do not save Ahston Pools from liability to the Blundons for installing a patio around the pool that cracked.
[35] It is not in dispute that the only way to remedy the cracking in the patio is to replace the section of the patio where the cracking exists. This is the area between the house and the pool from the southeast corner of the house continuing around the pool between the north edge of the pool and the lot line to the end of the solar blanket roller. Lewis Strauss is in the concrete construction business. He gave evidence that the cost of doing this and installing a proper gravel base was $29,990 plus HST for a total of $33,880.70. An estimate of Mr. Blaney for a smaller area “assuming no upgrades” without addressing the need for a proper base does not adequately address what is required. Ashton Pools argue that this figure should be reduced because the Blundons have had the use of the pool for 6 years. If the damaged patio is replaced it will last 6 years beyond the life of the rest of the patio. However the Blundons have not had the use of a properly constructed patio for 6 years. The ever widening cracks compromised the use of the pool by the Blundons.
The Driveway
[36] I accept the evidence of the Blundons that the water main sprung up in the driveway after the crane had left necessitating the replacement of the driveway at a cost of $4,284. Clearly this was caused by the weight of crane on the driveway for over 8 hours compacting the soil around the water main. This constitutes a breach by Ashton Pools of the implied term of the contract to perform its duties “diligently and in a workmanlike manner”. There is no exclusionary cause that would permit Ashton Pools to damage the driveway even if it could be held that one applied.
Faulty Pool Cleaner and Jet and Exess Water Use
[37] The failure of Ashton Pools to provide a functioning pool cleaner and jet and the resulting water loss all constitute breaches of the contract by Ashton Pools.
Waiver, Set Off and the In-Ground Deck Box
[38] The Blundons are seeking to offset the sum of $1,500.00 owing on the contract to compensate them for the reduced value of the pool heater, the unrepaired damage to the gate latch and change shed latch, the failure to receive a new filter and new pool maintenance equipment, the failure to be compensated for the lower model hot tub and the failure of Ashton Pools to do the remaining work on the fence that they installed in order to obtain a final approval from the City of Kitchener on the work permit issued when they commenced the project. I accept this. They also concede that they are liable to Ashton under the oral contract to construct a fence which Ashton did. The contract required the installation of the solar blanket. The in-ground deck box would be required to protect the solar blanket and must be regarded as part of the contract.
The 2 Cheques
[39] In late 2009 Ashton Pools still owed Benco $5,620.44 on its contract with Benco. Benson contacted Luke Blundon and told him that if Benco was not paid that it would place a lien on Michener. Ashton delivered 2 cheques to the Blundons – one payable to Benco in the amount of $4,620.44 and one co-payable to Luke Blundon and Benco in the amount of $1,000. The Blundons did not want a lien placed on their house. Luke Blundon endorsed the $1,000 cheque and the Blundons caused the cheques to be delivered to Benco. There was no evidence of cracking in the patio at this time. This action by the Blundons cannot be interpreted as a waiver of their claim against Ashton Pools.
Mitigation
[40] Ahston Pools advances the argument that if the Blundons had repaired the patio in 2010 when the cracks first appeared that it would have cost less and hence they have failed to mitigate their damages. The cause of the cracking and the full basis of Ashton Pools’ liability only became known to the Blundons in May of 2015 when Mr. Lay did destructive testing of the patio by removing a portion of it and examining the base on which the concrete had been laid. He discovered that Ashton Pools had poured the concrete on reworked, previously excavated clayey silt soil impervious to water. This is what caused the cracking. What Ashton should have done is brought in sand and gravel, compacted it and poured the concrete on a free draining base. Ashton, as a long experienced swimming pool/cement patio contractor, would know this. The Blundons did not know. They only found out by hiring Mr. Lay. If they had hired an independent contractor to remove the damaged portion of the patio and install a new patio concrete may have again been poured on an inadequate base. I cannot accept this argument for this reason.
The Third Party Claim
[41] The third party claim is based on an assertion that Benco delivered concrete mix to Michener with too much water. I have held that this proposition is unsustainable.
[42] I agree with the Blundons that their damages are as follows:
(i) $33,888.70 to remove and replace the deficient portion of the concrete patio (inclusive of HST); (ii) $4,284.00 to remove and replace the driveway; (iii) $846.37 spent to replace the pool cleaner; (iv) $395.50 to repair the leak; (v) $241.32, being the excess in the Blundons’ water bills during the period before the leak was discovered; and, (vi) less a set off of $3,385.00, being the cost of the iron-rail fence, which the Blundons acknowledge they requested Ashton Pools install, after the Contract was signed
for a total of $36, 270.89. The Blundons shall have judgment against Ashton Pools for this amount. Ahston Pools counterclaim against the Blundons is dismissed. Ashton Pools third party claim against Benco is dismissed.
[43] The Blundons and Benco shall have 10 days from the receipt of this judgment to make written submissions on costs. Ashton Pools shall have 10 days to respond.
P.B. Hambly J. Released: May 2, 2016