CITATION: Seal Tech Basement Sealing Inc. v. Prychitko, 2016 ONSC 759
COURT FILE NO.: CV-11-5238
DATE: 2016/03/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SEAL TECH BASEMENT SEALING INC.
Liam M. Sangster, for the Plaintiff / Defendant by counterclaim
Plaintiff / Defendant by counterclaim
- and -
JONATHAN PRYCHITKO and KERI PRYCHITKO
Scott R. Fairley, for the Defendants / Plaintiffs by counterclaim
Defendants / Plaintiffs by counterclaim
HEARD: December 29 and 30, 2015
The Honourable Mr. Justice David J. Nadeau
REASONS FOR JUDGMENT
[1] In deciding on the motion for summary judgment in this matter dated October 20, 2014, Justice Valin included the following observations;
“The following deemed admissions flowing from the request to admit relate to the summary judgment sought by the defendants:
That a representative of the Plaintiff, Omer Morin, met with the Prychitkos on March 22, 2011 and advised that the Plaintiff would provide a quotation based on the plans and specifications that had been reviewed during the meeting.
That the Prychitkos requested modifications to the initial proposal and on April 29, 2011 the Plaintiff and the Prychitkos entered into an agreement for $16,950.00 inclusive of HST (the “Contract”).
That the contract is the only written and signed contract between the Plaintiff and the Prychitkos.
That the Prychitkos relied on the plaintiff to advise them what work was necessary to complete the project and to provide quotations for any recommended additional work.
That no further contracts or documents were signed approving any additional work beyond what was set out in the Contract.
That the Plaintiff failed to make it clear what work was additional to the original scope of work, or what the cost of the additional work would be or how it was to be performed.
That the Prychitkos did not agree to pay the amount invoiced by the Plaintiff nor was the amount invoiced until after the Plaintiff was told to cease work.
I conclude from those admissions, which by operation of rule 51.03 the plaintiff is deemed to have made, that on a balance of probabilities there is no substance to the plaintiff’s claim for payment of the sum of $78,483.60 in addition to the sum of $50,000 which the defendants have already paid.
Accordingly, summary judgment will issue dismissing the plaintiff’s claim for payment of the sum of $78,483.60.
It is clear from the deemed admissions flowing from the request to admit that the plaintiff has admitted liability for breach of contract and negligence which resulted in the defendants suffering damages. The plaintiff is also deemed to have admitted that it performed unnecessary work.
Despite the fact that the plaintiff is deemed to have admitted liability, the plaintiff is nevertheless entitled to challenge the amount of damages being claimed by the defendants on their counter-claim.
I find there is a genuine issue requiring a trial to assess the defendants’ damages on their counter-claim.
Accordingly, summary judgment will issue to the effect that the plaintiff is liable to the defendants on their counter-claim for breach of contract and negligence. This matter should be returned to the trial list to set a date for the assessment of damages flowing from that liability.”
[2] During this two day trial of an issue, there was testimony from six witnesses and there were eight exhibits tendered. The only serious issue is the quantum of damages flowing from the liability of Seal Tech Basement Sealing Inc. to Jonathan and Keri Prychitko on their counterclaim for breach of contract and negligence. The closing written submissions were all received by this Court as of February 19, 2016.
[3] Counsel for these parties are extremely divergent in their submissions both on the basis for liability and the appropriate quantum in the proper assessment of damages here. On the one hand the Plaintiffs by counterclaim seek $190,707.91, and on the other the Defendant by counterclaim essentially submits that such an amount is excessive in these circumstances. It is submitted, on various levels, that a fair and just reflection of the damages suffered should compensate but would prevent the gain of a windfall, and furthermore that any award of damages should include a credit of $47,143.60. It is further submitted that when the cost to repair the damage outweighs the value lost, the diminution in value test applies.
[4] However there was no appraisal evidence presented, and I therefore find that the appropriate quantification of damages here is the cost to repair the damage caused. As well, to do otherwise in these circumstances would be to circumvent Justice Valin’s decision granting summary judgment. And even though the damages claimed in this trial of an issue have been challenged as being either excessive, unnecessary, or subject to a reduction for betterment, to consider the suggested credit here would be a collateral attack on Justice Valin’s determination. Essentially, I have determined that there was no value to the work of the Defendant by counterclaim, and that additional costs were incurred to remove and remediate their work. My task therefore is to assess that cost to repair the damage caused.
[5] During this hearing for the assessment of damages, evidence was presented of the costs incurred due to breaches of contract as well as the acts of negligence. I was impressed by the testimony of William Bryant, the engineer that was required to direct the remedial work made necessary at the home in question. Mr. Bryant noted the deficiencies; that are admitted in this matter. A replacement contractor was required to repair these deficiencies. It became necessary to re-excavate and to remove much of the deficient waterproofing and to renovate the landscaping that had been performed on the home.
[6] The evidence also discloses acts of negligence during the performance of this work at the home by Seal Tech Basement Sealing Inc. The main hydro line supplying power to the home was negligently cut causing significant damage, including further flooding. It became necessary for the family to vacate their home while the necessary steps were taken to restore power and allow the family back in. This damage had to be repaired, and be made compliant, in order to restore power to the home.
[7] As outlined from the closing written submissions of these parties, I will address each of the categories of damages incurred resulting from the breaches of contract and the acts of negligence proven. Damages for breach of contract are to be assessed as those that may fairly and reasonably be considered to arise naturally from the breach of contract itself, or such as may be supposed to have been in the contemplation of both parties. The general purpose of assessing damages is to place the injured party, so far as reasonably possible, to the position they would have been in had the breach of contract not occurred. With negligence, there is liability for damages that were reasonably foreseeable as a result of the negligence. The degree of probability that would satisfy the reasonable foreseeability requirement is described as a “real risk”; one which would occur in the mind of a reasonable man in the position of the defendant…and which he would not brush aside as far-fetched.
[8] With respect to the $50,000 paid prior to terminating the contract, I find that it was within the contemplation of the parties that work of no value would not be paid for. And even though paragraph 15 of the decision of October 20, 2014 made by Justice Valin seems to exclude this payment from his analysis, I am satisfied on a balance of probabilities that this $50,000 has been proven as compensable damages here.
[9] With respect to the electrical repair required, it is reasonably foreseeable and would be expected by the parties that all costs associated with restoring power to the house and repairing the damaged lighting and wiring would be the consequence of the main hydro feed being cut and the lighting and wiring being damaged. I am satisfied on this evidence that the compensable damages in this regard be set at $12,431.83 for the July 4, 2011 invoice, $2,414.22 for the January 12, 2012 invoice, and $2,300.54 for the April 26, 2012 invoice (#003369) after allowing a 10% discount for ambiguity.
[10] With respect to the groceries expense resulting from the spoiling when the power was cut and for the purchase of food while the family resided in the bunkie for several days, I am satisfied that this proven compensable damage be set at $700.00.
[11] With respect to the damaged air conditioner which had been disconnected, I am satisfied that the Empire Heating invoice in the amount of $2,991.11 be reimbursed as damages. Also, the reasonable mitigation by the purchase of fans and portable air conditioners after the power and air conditioner was damaged and disconnected is assessed at $800.00, considering the betterment received.
[12] With respect to the damaged light fixtures on the exterior of the premises, I am satisfied that this proven compensable damage be set at $1,272.95.
[13] With respect to the removal of the deficient foundation work and to properly waterproof the foundation of the home, there is no dispute that 40% of Green Acre Contracting’s work was related to such removal and repairing. There is also no dispute to the South Wall remediation required. Therefore, the total proven compensable damages for these categories are $35,941.86.
[14] With respect to the landscaping services claimed in connection with the foundation work required, there were three invoices provided dated August 11, 2011, September 27, 2011 and November 22, 2011. These invoices from Rock Landscaping Inc. do not provide substantial details and do not give a breakdown of the work completed and the damages repaired. There was also the testimony of their performing extra work at the home, and the fact that a representative of the landscaper was not called to provide evidence in this trial. Although admittedly the Court is required to estimate since these damages are difficult to quantify, I have been satisfied on a balance of probabilities that the damages associated with the required landscaping repair to correct the deficiencies are assessed at $18,000.00.
[15] With respect to the cost of repairing the siding of the home, I have considered the extent of the gouges, scars and dents in the exterior cladding, soffits, eaves trough, and facia boards of the home. Also, there were facades of the home that did not have such damage. I accept the testimony of the efforts to try and repair only the damaged areas, as well as the necessity for high quality remediation consistent with the existing construction of this home. I have determined on this evidence that there is no reasonable manner to repair only the damaged areas and that it will be necessary to replace the exterior cladding. There is also the question of whether it will even eventually be replaced. However, in assessing the quotation of $45,000 for replacement with stucco due to the cost of this natural wood siding, and that a reduction for betterment will obviously be warranted, the appropriate measure of damages here is a betterment reduction of one-third (or 33 1/3%) from the quotation submitted; therefore $30,000.00.
[16] Since the home obviously required cleaning from the damage caused and the repair required here, I have been satisfied on this evidence that the July 12, 2011 invoice in the amount of $1,307.41 and the April 18, 2014 invoice in the amount of $4,647.69 are proven compensable damages here.
[17] While I am satisfied that the amount of $4,394.01 of engineering services be reimbursed here, I have not been satisfied on this evidence that the July 29, 2014 and September 30, 2014 invoices from Northern Brick Ltd. have been proven.
[18] From all of the evidence adduced at this trial of an issue, it has been established on a balance of probabilities that the reasonable and foreseeable damages resulting from the breaches of contract and acts of negligence here amounts to a total of $167,201.62 plus pre-judgment interest from the date of the issuance of the counterclaim, being November 2, 2011.
[19] If the parties cannot agree on the issue of costs for this trial of an issue, this Court will entertain written submissions dealing with all aspects of the award of costs. Any party claiming costs shall serve and file written submissions and a bill of costs no later than 15 days from the date of this order. Any responding submissions shall be served and filed within 15 days thereafter.
The Honourable Mr. Justice David J. Nadeau
Released: March 16, 2016
CITATION: Seal Tech Basement Sealing Inc. v.Prychitko, 2016 ONSC 759
COURT FILE NO.: CV-11-5238
DATE: 2016/03/16
ONTARIO
SUPERIOR COURT OF JUSTICE
SEAL TECH BASEMENT SEALING INC.
Plaintiff / Defendant by counterclaim
– and –
JONATHAN PRYCHITKO and KERI PRYCHITKO
Defendants / Plaintiffs by counterclaim
REASONS FOR JUDGMENT
The Honourable Mr. Justice David J. Nadeau
Released: March 16, 2016