Court File and Parties

COURT FILE NO.: C-967-13 DATE: 2016-06-14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Denise Kerr and Tony Kerr Plaintiffs – and – Mike Roth cob as Enviromasters Lawn Care aka Enviromasters; 2127668 Ontario Inc.: and A-D Engineering Group Ltd. Defendants

Counsel: Gretchen Reitzel, Counsel for the Plaintiffs No One Appearing for the Defendant Mike Roth cob as Enviromasters Lawn Care aka Enviromasters and 217668 Ontario Inc. Kirk McPherson, Counsel for the Defendant, A-D Engineering Group Limited

HEARD: May 24, 2016

The Honourable Mr. Justice C. S. Glithero

Reasons for Judgment

[1] The plaintiffs are husband and wife and own and reside at a home in Kitchener.

[2] The defendant Mike Roth filed pleadings but did not attend for discoveries and did not attend at trial.

[3] The numbered company defendant was not represented at trial, in circumstances discussed later.

[4] Counsel for A-D Engineering Group Limited (A-D) did not appear at trial as he and plaintiff’s counsel concluded it was unlikely that the other defendants would attend trial to pursue their claims.

[5] In 2011 the plaintiffs decided they wanted to make substantial renovations to their backyard, including a cement patio, a sizeable length of retaining wall, and a wooden privacy fence.

[6] Mr. Kerr testified that they approached the defendant Mike Roth to do the work, as they had observed him doing landscaping and renovation work within their neighbourhood.

[7] Mr. Kerr testified that they initially wanted the west retaining wall replaced but Mr. Roth indicated that both the south and north walls would have to be replaced or a new west wall couldn’t properly be tied in with the other two walls so as to be suitable for the purpose. The plaintiffs agreed and asked for a quotation. Mr. Roth provided a quotation in the amount of $64,000 for the entire project.

[8] The plaintiffs had retained the services of the defendant, A-D Engineering Group Ltd. (“A-D”) to prepare engineering drawings for use in the construction of the renovations. These drawings were provided to Mr. Roth by the plaintiffs.

[9] The plaintiffs paid Mr. Roth a deposit in the amount of $25,000, by way of a cheque found at Tab 4 of Exhibit 3. That cheque was issued in response to invoice #2088 dated September 15, 2011 from “Enviromaster”.

[10] When the work was completed, at least in Mr. Roth’s estimation, he delivered another invoice for $40,540. That invoice was issued in the name of “Enviromaster”. The plaintiffs paid that invoice by cheque found at Exhibit 3, Tab 5 dated December 12, 2011.

[11] The evidence of Mr. Kerr is that there were still deficiencies to be corrected but that Mr. Roth said that he would attend to them once he had been paid. The plaintiffs’ position is that he never did return to correct or finish anything despite requests by them that he do so, and despite the fact that he had been fully paid.

[12] Once the plaintiffs had paid the entire amount invoiced by the defendant Roth, and yet he had not returned as promised to complete deficiencies, the plaintiffs were dissatisfied with the work performed. The plaintiffs hired a landscape architect, Paul R. Brydges, to inspect the property and to prepare a professional opinion as to the quality of the work done by Roth.

[13] Mr. Brydges prepared a report. His resume shows him to be a registered landscape architect, to have a Bachelor of Landscape Architecture from the University of Guelph, to be the principal of his own landscape architecture company since 2004, to have been employed in other landscape design companies for a number of years before that, and to be the current president of Landscape Ontario. I am satisfied that he is qualified to give opinion evidence in the field of landscape architecture, which according to his resume, includes managing projects for clients, including the aspects of tendering, budgeting, overseeing the construction process and quality, and giving final approvals. His report was served on the other parties well before trial and in compliance with Rule 53.03 of the Rules of Civil Procedure. His affidavit confirms his report to be true and accurate.

[14] His report first deals with his findings of deficiencies in the retaining wall. He deals with them in various sections of that wall, as identified by his markings on the map contained at page one.

[15] As his evidence was not the subject of cross-examination, and was not contradicted as no defence evidence was called, I see no point in repeating each of the many defects identified by Mr. Brydges. His findings are described and are illustrated by accompanying photographs. In some areas the retaining wall is higher in some portions than it is in others. In some areas there are spaces evident between the courses of precast wall segments. Other areas show settlement of the wall. The top row of the wall or coping has not been glued down, as it apparently ought to have been, and in some areas does not overhang the course below as it should. In some areas the coping sections are falling off the wall creating an unstable and dangerous situation. He found insufficient staggering of the joints as between courses in the sense that, as is the case with a normal brick wall, the join between blocks in one layer ought to be located roughly in between the joints in the blocks of the wall both above and below and the failure to do so decreases the structural stability of the wall. In areas, water was seeping through the layers, as was organic matter evident between some of the block layers, indicating the suspicion of improper drainage, so it is behind the wall. The report and the supporting photographs show some of the coping sections to have been cut at incorrect angles. From the photographs taken, it is evident that the retaining wall is done in a sloppy and uneven fashion, raising legitimate concerns about the stability of the wall.

[16] In terms of the wood fencing constructed by the defendant Roth, Mr. Brydges found the fence posts to be unstable and that they would deflect by up to 6” with a simple push, giving rise to a suspicion that they were not imbedded in concrete or sonotubes below ground level. The fence would move during windy conditions. In several places the fence sections were not aligned in a straight manner. There were section fasteners, screws and brackets that were of different types and qualities, and applied in different quantities in various portions of the fence. Some screws were countersunk and some were not, giving an uneven appearance and which promoted cupping or splitting of fence boards. The fencepost tops were cut at differing heights, and were not cut evenly. There was evidence of saw cut damage on the sides of posts. The 2 foot high lattice section which topped the fence in several areas was too short to fill the gap intended to be filled by the lattice work and the top or bottom lattice rails, used to fix the lattice work in place, were in many instances cut too short and did not span the distance between the posts and did not support the lattice sections properly, resulting in some of them becoming loose and falling out of the fence. A gate in the fence required the lifting of the gate so that the gate could be opened or closed, because of warping in the hinge post.

[17] In my opinion, the report demonstrates the construction of the wooden fence to have been done in a shoddy manner using some inferior materials and to have resulted in an unsatisfactory product.

[18] In terms of the concrete patio pad, the defendant Roth initially built it too small, compared to the drawing specifications that had been given. When that was pointed out he caused an extra apron of concrete to be poured around the outside, resulting in a seam between the initial and the extra sections. This resulted in a visual distraction, as well as the likelihood of differing heave or settlement rates as between the original and the extra portions so as to create the likelihood of a trip hazard, as well as the formation of water traps for ice. There was no expansion joint provided as there ought to have been. The concrete steps poured as part of this project varied in terms of their length, their rise and their tread and were not in accordance with building code requirements.

[19] Mr. Brydges’ report concludes with contract proposals to remedy the defective work done by the defendant Roth on the plaintiffs’ property.

[20] The first proposal is from Forestell Design Landscapes who provided separate proposals for each of the three areas, the wooden fencing, the retaining wall and the patio concrete slab. Their proposal with respect to the wood fence, including demolition of the old and replacing with new products properly installed, totalled $31,838, plus GST. Included in that amount is the sum of $8,331 for removing and disposing of 6” of earth over the entire backyard area, compacting area and supplying and installing 6” of screened topsoil and then sodding the area. I have no evidence that such work was part of the plaintiffs’ contractual relations with Mr. Roth.

[21] In terms of the concrete work, Forestell’s proposal is in the amount of $13,998.60. It includes removing and disposing of an existing concrete walkway going from the driveway to the stairs and replacing it with block pavers. I have no evidence that the walkway to be removed was defective, or that it was even installed by the defendant, or if it was, that it was supposed to be done in pavers rather than concrete. I would not approve that latter amount and deducting it reduces the proposal for the concrete work to $10,119, plus GST.

[22] In terms of the work necessary to correct the retaining wall, the proposal by Forestell has the advantage that it reuses the concrete wall blocks or sections used by the defendant in constructing the retaining wall, but includes the cost of reinstalling them according to the specifications provided for the product, together with necessary preparation work, drainage work and such additional concrete product as may be required. The proposal for the retaining wall work is in the amount of $89,966, plus GST.

[23] Another quotation was obtained from Alltask Property Improvement Inc. It is not as detailed, but quotes a figure of $61,570, plus GST in a portion that appears to relate to the retaining wall. It does not reuse the old block wall sections improperly installed by Roth, but instead proposes to use a different product. I have no evidence as to whether this new product would be of inferior, equal or superior quality. It also includes the cost of a new concrete pad for a shed whereas the evidence I have from Mr. Kerr was that there was nothing wrong with the concrete pad for the shed. It gives a separate quote in the amount of $8,280, plus HST for the cost of removing the existing concrete patio and providing a new one, together with stairs leading to the patio area. Alltask also provides a separate quotation in the amount of $11,985, with respect to supplying and erecting a new wooden fence.

[24] A third proposal from LP Landscape Plus Inc. contains virtually nothing more than a total price for each of the three areas of work. It proposes $15,048.50 for the concrete work, including demolition and replacement. It proposes a figure of $96,713.45, plus HST for demolishing the old retaining wall and replacing it, without any description of what products would be used for the reconstruction. In terms of demolishing and replacing the wood fence, together with re-grading and re-sodding of the site, the proposal is in the amount of $34,225.85, plus HST.

[25] As I am left to determine the matter without cross-examination of Mr. Brydges, or without any defence evidence disputing the validity of the quotations obtained by him, I conclude that the quotation by Forestell is the most preferred, as it is the most detailed and because it contemplates reusing the concrete block building units already supplied by Mr. Roth for the project. It is the installation of the wall component blocks which is improper, not the wall blocks themselves. They are not cemented or glued together and I see no reason they can’t be reused, as proposed by Forestell. There will be some portions that have been improperly cut which will likely have to be replaced, and some additional sections will be required, likely, to fill in spaces where pieces were missing.

[26] The defendant Roth pleaded that the plaintiffs never contracted with him, and denied operating a sole proprietorship or carrying on business as “Enviromasters” or “Enviromasters Lawn Care”. He pleaded that the plaintiffs contracted with the numbered company, which carries on business as “Enviromasters”. The evidence I have on this issue is that a business card presented by Mr. Roth to Mr. Kerr bore two identifications. One was in the name of Enviromasters Lawn Care with Mr. Roth’s name, address and phone number. The second was in the name of Mike’s Lawn Care Service, again bearing Mr. Roth’s name, telephone number and address. The two invoices provided to Mr. Kerr were in the name of Enviromaster with no additional information indicating the involvement of any corporation. Mr. Kerr’s two cheques, in payment of the deposit and the final payment were made out in favour of Enviromaster, the same name in which the invoices had been sent. Mr. Kerr’s evidence is that he was never told that he was contracting with a corporation, or that his contract was not with Mr. Roth.

[27] On July 30, 2015, an assignment in bankruptcy was filed in the name of “2127668 Ontario Inc., operating as Enviro Masters Lawn Care” and MNP Ltd. was appointed trustee. By virtue of Rule 11.01 of the Rules of Civil Procedure, the proceedings against that corporate defendant were stayed until such time as an order to continue the proceedings against it has been obtained. No such order has been obtained and accordingly the action as against the numbered company defendant is stayed. By application of the same Rule, the proceedings undertaken by the numbered company defendant by way of cross-claim against the defendant A-D Engineering Group Ltd. are also stayed.

[28] A corporation profile report for 2127668 Ontario Inc. shows Michael J. Roth to be a director and officer.

[29] On the evidence I have, it appears that the name of the numbered corporation was not set out in the invoices allegedly issued on its behalf, as is required by s.10(5) of the Business Corporations Act, R.S.O. 1990, c.B.16.

[30] Section 2(1) of the Business Names Act, R.S.O. 1990, c.B.17 prohibits a corporation from carrying on business or identifying itself to the public under a name other than its corporate name, unless that other name is registered.

[31] The corporation profile report found at Tab 7 in the plaintiffs’ documents brief indicates that the numbered corporation, 2127668, has no registered business names on file.

[32] I find that the defendant Roth is personally liable. The defendant failed to indicate to the plaintiffs in any manner at all that their agreement was with the numbered company, rather than him personally: City Press Inc. v. Green (c.o.b. B&G Print & Litho, [1996] O.J. No. 1823; Truster v. Tri-Lux Homes Ltd., [1998] O. J. No. 2001 (Ont. C.A.).

[33] I find that the defendant breached an implied condition of his contract with the plaintiffs that the contracted project would be done in a good and workmanlike manner. I am also satisfied that the plaintiffs have proven the defendant to have been negligent in his performance of the work.

[34] As to damages, the principle of expectancy entitles the plaintiffs to damages sufficient to put them in the position they would have been had the contract been fulfilled. I must also consider the obligation to mitigate their damages, and be alert to the issue of betterment.

[35] I find the quotation by Forestell to be the most detailed and helpful, subject to the comments above regarding the walkway and earth removal, and compacting components. On the evidence I have, those items would be betterments. This proposal addresses the mitigation issue by re-using the concrete components of the retaining wall. Adjusting the quoted amount by removing these items leaves a total of $123,595.00, plus HST.

[36] This result falls in between Alltask and LP at $81,835.00, plus HST, and LP at $145,986.00.

[37] I am not unmindful that there may well be a betterment in that the plaintiffs contracted with a person holding himself out to be a lawn service business, whereas the quotes upon which I am to calculate damages appear to be of a more professional landscape contractor level. On the other hand, the evidence I have is that the plaintiffs hired A-D to prepare engineering drawings showing what was to be done, and that these drawing were provided to the defendant and hence that he quoted on the basis of them, and knew what was expected of him.

[38] Taking all these factors into account, I assess the damages in the amount of $125,000, inclusive of GST, and award judgement for the plaintiffs in that amount against the defendant Roth.

[39] While the action as against the numbered company is stayed, as to its cross-claim against A-D, given my above findings as to the identity of the contracting defendant, there are no damages payable by the corporate defendant and hence its cross-claim against A-D fails. The cross-claim of the defendant A-D for contribution and indemnity is also dismissed.

[40] As to costs, written submissions on behalf of the plaintiffs and A-D may be submitted to my chambers in Kitchener within 30 days of the release of these reasons, or such extensions as may be sought and granted. Such submissions are not to exceed 3 pages, exclusive of bills of costs, and any relevant authorities. In the event that no such submissions are received, there will be no order as to costs.

C.S. Glithero J. Date: June 14, 2016