Court File and Parties

Court File No.: CV 15-030SR Date: 2017-04-28 Ontario Superior Court of Justice

Between: Weir Builders Ltd., Plaintiff And: Steven Robert Bell and Elsa Bell (aka Elsa Szlapa), Defendants

Before: Conlan J.

Counsel: Erroll Treslan, for the Plaintiff Ross Thomson, for the Defendants

Heard: April 18, 19, 20, 21 & 27, 2017

Reasons for Judgment

I. Introduction

[1] Former friends are now entangled in a lawsuit that stems from the building of a very nice home in Southampton, Ontario.

[2] Do the Defendants, for whom the home was built, owe any more money to the Plaintiff, the builder? If so, how much?

[3] Those are the questions to be decided.

The Players

[4] Weir Builders Ltd. (“WBL”), the Plaintiff, is a family company, and one of its employees is carpenter Adam Weir (“Adam”), 37 years old.

[5] Although Adam is not a licensed carpenter, he has been a part of the family business, started by his father in the 1970s, for about twenty years.

[6] According to Adam, prior to the project in dispute, he had been involved in “hundreds” of other jobs, about forty to fifty of which were complete builds of homes.

[7] Steven Robert Bell (“Steven”) and his wife Elsa Bell (“Elsa”), the Defendants, are former friends of Adam. They had all known each other for several years before this project in Southampton began. The closer relationship was really between Adam and Steven, as they played competitive rugby together.

[8] Elsa, 33 years old, is a college graduate in project management. She has worked for Bruce Power, a very large local company, for many years, first as a project planner and then as a cost analyst, which position she still holds currently.

[9] Interestingly, she used to work for a home building company called Reid’s Heritage Homes. She was a new home sales consultant. In that capacity, she knew what the Tarion warranty plan was about.

[10] Elsa is a very meticulous person. Yet she broke her own cardinal rule when it came to the building of the home in Southampton. As a professional project planner, she testified that the first thing to ensure in any project is to fully understand the scope of the work, but she also testified that she did not know, and has never known, what was included in the original quote provided by WBL. The undertone of her trial testimony was that she was simply in the dark.

The Build

[11] On a lot in Southampton, WBL built a large home (two storeys, somewhere between 3400 and 3700 square feet) for Steven and Elsa. The planning process began in 2013. Adam submitted to the Bells a quote – the “Proposal” (Exhibit 1, tab 2).

[12] That Proposal was not detailed. It included, on one page, a list of one or two-word items, such as “Foundation” and “Framing”, and an amount for each item. It included material and labour to do those items listed according to the blueprints. The blueprints were prepared by someone else named Gary McMillan and were dated July 2013 (Exhibit 1, tab 1). They were later changed in September 2013 (Exhibit 2, tab 1). The Proposal had a total cost of $464,653.30 ($411,197.61 plus $53,455.69 for HST at 13 per cent). At the bottom of the page, the interest rate of two per cent per month on overdue accounts was indicated.

[13] Things were good.

[14] In hindsight, however, alarms ought to have been sounding almost from the very start. According to Adam, the Bells had not been approved for financing that would cover anything close to the cost of the Proposal, never mind any changes or extras. They had $390,000.00 in bank financing. Elsa admitted that in her evidence, however, she claimed that the balance was to be funded from a line of credit, savings, an inheritance, and the net proceeds of sale of her own house.

[15] Clearly, regardless of anything that the Bells may think, this project was too much for them.

[16] By the summer/fall of 2014, the relationship between the parties had been irreparably damaged. Adam was asking for more money. Steven had texted Adam saying that he did not realize that they were as much as $140,000.00 over the cost of the Proposal (Exhibit 1, tab 7, the text from Steven to Adam at 2:27 p.m. on July 16, 2014).

The Dispute

[17] The heart of the dispute is whether the Bells are responsible to pay for two categories of items: (i) variances – changes to the original Proposal that Adam says were authorized by the Bells, for example, higher quality windows, and (ii) extras – add-ons to the build that, again, Adam says were approved of by the Bells, for example, what Adam described as a “stunning” and “elaborate” inside bulkhead.

[18] Ironically, the gulf between the parties was not that wide back in April 2015. At that time, as evidenced by Elsa’s clear, unequivocal and repeated admissions during her examination for discovery, the Bells were not disputing any of the extras being claimed by WBL, and further, they were not disputing that they were liable to pay the fair market value for each one of those extras. The only dispute then about the extras was whether Adam was charging a fair price.

[19] Ultimately, in October 2014, WBL rendered a final bill to the Bells for $141,351.75 (Exhibit 1, tab 8), on top of what the Defendants had already paid. That bill was quite detailed. On the first page, it listed items, like “Foundation”, the original quoted price for each item, and the actual price for each item. One can see that the total cost of those items went from $402,102.61 to $442,208.73 (an increase of about $40,000.00 on account of changes to the project). On the second page, all of the extras were listed, with a price for each, totaling $84,246.11. All of the payments to date were also listed, the amount and date for each, totaling $460,273.25.

[20] The $141,351.75 owing was broken down on page two of the document: $442,208.73, plus the extras ($84,246.11), plus HST ($68,439.12), less payments received to date ($460,273.25), plus interest ($6731.04).

[21] The Bells balked. Litigation was inevitable.

[22] Excluding interest and costs, as a result of some concessions made by WBL since October 2014, WBL’s current claim is for about $110,000.00.

[23] That figure includes what, by the end of the trial, is $17,540.84, including HST, being claimed by WBL for changes to the project.

[24] The component of the claim relating to extras or add-ons is $92,524.98, including HST.

The Positions of the Parties

[25] Simply put, the claim is premised on the fact that the Bells got the house that they wanted, even if maybe they could not really afford it, and now they have to pay for the Plaintiff’s sweat and supplies.

[26] The quality of the workmanship has never been an issue, says WBL. Adam testified that he did everything that was asked of him in building for the Bells their dream home for what he has calculated to be a more than reasonable price of about $165.00 per square foot.

[27] In a series of handwritten and typed documents at tabs 11 through 13 of Exhibit 1, WBL has attempted to provide as much detail as possible to explain the amounts being claimed for changes to and extras on the build. Wherever possible, actual invoices from subcontractors are referred to and have been provided.

[28] The Bells remain unsatisfied.

[29] In their pleading, the Bells raise numerous points in defence of the claim.

[30] First, they submit that WBL is not entitled to any interest on anything that might still be owed, and certainly not the 2 per cent per month as pleaded by WBL.

[31] Second, they dispute the total cost of the original Proposal as calculated by WBL.

[32] Third, they dispute that the home was finished by late August 2014, as alleged by WBL.

[33] Fourth, they allege many deficiencies and much unfinished work.

[34] Fifth, they allege that WBL has failed to account for contributions made by the Bells in terms of helping with the construction and paying for expenses that went on longer than anticipated because of delays in completing the build.

[35] Sixth, they allege that the home is by no means a “premium build”, as suggested by WBL.

[36] Seventh, they state that not all of the changes to the project were authorized by them.

[37] Eighth, they allege that no firm figures for the changes to the project were ever provided by WBL, despite repeated requests for that information.

[38] On the issue of changes to the project, Elsa has not always been consistent on which items are being contested. As examples, in April 2015, she indicated during her questioning by counsel for WBL that certain things, like the changes related to plumbing, electrical and stone work, were not being contested, while at trial she testified that they were being challenged.

[39] Ultimately, in cross-examination at trial, Elsa acknowledged that all changes being claimed by WBL are legitimate changes to the build, and further, they all were changes that increased (not lowered) the cost of the project.

[40] Elsa also admitted during her testimony that, for every change to the project that is still being disputed by the Bells in terms of its cost, the Bells have no evidence of their own to offer of the fair market value for each change and, in fact, do not know what the figure should be if the Court does not accept what is being suggested by WBL.

[41] Ninth, the Bells state that they were kept in the dark in terms of the schedule of the construction work.

[42] I pause here to note that both Elsa and Steven testified that they never asked WBL to stop work on the project. Steven testified at trial that they always had the money to pay if sufficient details were provided, even at $140,000.00 over the quoted price (ironically, WBL’s current claim, excluding interest and costs, is for considerably less than $140,000).

[43] Tenth, the Bells allege that they have not been given credit by WBL for things that they bought themselves. A set-off is claimed by the Bells in that regard.

[44] Eleventh, they also want to be credited for items that they say were included in the original Proposal but which were never purchased or supplied by WBL.

[45] Twelfth, they state that not all of the extras were authorized by them, and other items were not actually extras at all.

[46] Thirteenth, they allege that they never agreed to the cost of at least some of the extras.

[47] Fourteenth, they submit generally that WBL has failed to provide a proper accounting of what is owed, if anything, and has failed to provide invoices and receipts, and what accounting there has been is riddled with errors and inaccuracies.

[48] On this point, both Elsa and Steven testified about cash payments made by Steven to Adam that WBL has failed to account for. As an example, Steven allegedly gave $10,000.00 or $11,000.00 in cash to Adam to give to Great Lakes Concrete for the patio.

[49] There was no explanation as to how that could be, however, when Exhibit 12 shows that Great Lakes Concrete was paid by WBL with a cheque for $9693.70 written in July 2014.

[50] Fifteenth, the Bells state that WBL has overbilled them in that invoices have been artificially inflated and some work/material has been billed for twice.

[51] Finally, it is alleged by the Bells that WBL is not registered as a builder with Tarion under the Ontario New Home Warranties Plan Act, a fact that is not disputed by WBL, and thus, the Bells submit that the entire building contract was illegal and is not enforceable.

[52] On that latter point, both Elsa and Steven admitted during their trial testimony that they knew, in advance of construction, that the building of their home was not covered under the Tarion warranty plan. In addition, it is conceded by the Bells that they never raised the Tarion warranty issue before April 2017 (the month of the trial and 2.5 years after the final bill was rendered by WBL).

[53] In short, the Bells have pleaded allegations that are extremely serious. If true, they amount to a total condemnation of WBL and Adam as more than just sloppy or careless but incompetent (“incompetence” is a term used at paragraph 17 of the most recent pleading on behalf of the Defendants), dishonest and perhaps even fraudsters.

[54] Although the latter two terms are not expressly used in their most recent pleading, they are the clear and unequivocal import of allegations like WBL “artificially inflating invoices”, “billing twice for the same work or material”, and putting forth deliberately “exaggerated” claims that are “without merit”, all in the context of an illegal contract to begin with (see paragraphs 15, 16 and 18 of the Bells’ Further Amended Statement of Defence dated April 18, 2017).

[55] During her testimony at trial, Elsa softened those allegations to some extent, stating that she is unsure whether the many mistakes allegedly made by WBL in billing for this project were in fact intentional.

[56] Clearly, at least one of the allegations pleaded by the Bells is blatantly inconsistent with Elsa’s admissions back in April 2015, namely, that all or some of the extras being claimed by WBL are not legitimate.

[57] Eventually, in cross-examination at trial, Elsa clarified the real position of the Bells on the extras being claimed by WBL. All of them, except (i) clean-up, (ii) snow removal, (iii) the dumpster, and (iv) truck rentals, are agreed to – both in terms of having been authorized by the Bells and in terms of the Bells having to pay the fair market value for each one of them. What that fair market value is remains in dispute.

[58] For the four exceptions, the clean-up ought to have been included in the original Proposal, says Elsa. With regard to snow removal, she disputes the markup charge and the labour expense. On truck rentals, there is no explanation as to why that item is being disputed by the Bells. Regarding the dumpster, the Bells would be willing to pay half of what is being claimed by WBL.

The Trial

[59] This trial began in Owen Sound on April 18, 2017 and lasted five days, including final submissions by counsel.

[60] For the Plaintiff, I heard testimony from Adam and expert opinion evidence from Michael Sollazzo (“Sollazzo”), a home builder with plenty of experience and work credentials.

[61] There was a very short voir dire on the expert evidence issue. Essentially, subject to weight, the Plaintiff’s motion to adduce that evidence went unchallenged. I gave oral reasons for my decision to admit it.

[62] Sollazzo was tasked to visit the home with Adam sometime in 2015, take photographs and measurements, and prepare a document outlining what he thought were fair market values for the various extras being claimed by WBL.

[63] In advance of preparing his quote, Sollazzo did not know the values attributed to the extras by WBL and was not suggested any figures by WBL or anyone on its behalf, except for a few items where Sollazzo was required to rely on information from Adam or a subcontractor who worked on the job for Adam, such as the dumpster charges.

[64] Succinctly put, if Sollazzo’s evidence is accepted by the Court, then it would appear that the Bells got a deal on the extras. At tab 15 of Exhibit 1 is Sollazzo’s quote that shows a total cost of $90,064.15, before tax, for the extras. Remember that WBL is now claiming less than $82,000.00, before tax, for the extras.

[65] As part of the Plaintiff’s case, many excerpts from the transcript of Elsa’s examination for discovery held on April 16, 2015 were read-in. Those dealt mainly with certain admissions made by Elsa on behalf of both Defendants with regard to the extras.

[66] As alluded to above, it is crystal clear that Elsa, on behalf of herself and Steven, admitted on the record in April 2015, with her counsel present, not once but more than once, that there was no dispute about any of the extras being claimed by WBL or that the Bells had to pay for their fair market value. The only “beef” was with the amounts being charged by WBL (Exhibit 1, tab 17, pages 48-49).

[67] To a lesser extent, there were also some read-ins from the transcript of Steven’s examination for discovery held on the same date as Elsa’s.

[68] For the Defendants, I heard testimony from Elsa and Steven. A common theme from both of them was that they were kept in the dark by WBL. Money is not the issue but rather what they perceive to be an ongoing lack of information, both during the build and even now.

[69] According to the Bells, gaps in information surrounded WBL’s hourly rates, markups, what was included in the original Proposal, and where the Bells were at, from time to time, in total cost, as examples.

[70] The portions of the transcript of Adam’s examination for discovery held on April 16, 2015 that were read-in at trial by counsel for the Bells as part of their case certainly bolster the trial testimony of the Bells that Adam was not always providing detailed information to them.

[71] I accept that.

[72] As examples, Adam sometimes refused to show to the Bells certain invoices from suppliers (page 9 of the transcript); he generally did not outline the cost of an extra that had been authorized by the Bells before starting the work, unless they asked (page 11 of the transcript); and he did not disclose to the Bells in advance the markup cost of or WBL’s hourly rate for the extras (pages 14-15 of the transcript).

[73] The read-ins are relevant as well to general markup and hourly rate issues, two things concerning to the Bells. Adam stated in April 2015 that materials for extras were generally marked up by ten per cent, but there were exceptions, and WBL charged $30.00 per hour in labour for the extras (pages 17-18 of the transcript).

[74] The read-ins are also relevant to the issue of whether the Bells received a credit for things included in the original Proposal that were then changed to something more expensive later on. For example, if the Proposal included regular windows at $100.00 a piece but the Bells upgraded those windows to ones that cost $200.00 each, did the Bells receive a credit of $100.00 per window against the cost of the upgrade?

[75] At his examination for discovery, at least for things like counter tops, appliances and faucets, Adam stated that if the Bells bought them with their own money, they received no credit for that against the cost of the Proposal because those things were not included.

[76] Whatever the Bells purchased was on top of the original quote, he stated back in April 2015 (see page 5 of the transcript of the examination for discovery).

[77] Through a series of spreadsheets that she has created (Exhibit 2, tabs 6 through 11), some after litigation commenced and others mid-trial, Elsa has calculated the total amount owing on the build to be $485,597.86, all-inclusive, and the total amount paid to date by the Bells to be $476,290.65, leaving only a small balance owing that is nowhere near the more than $100,000.00 being sought by WBL.

[78] That would mean, of course, that all of the changes to and all of the extras on the project amounted, in total, to only about $21,000.00 ($485,597.86 less the $464,653.30 quoted in the Proposal).

[79] Despite the Court’s attempts to clarify it, it remains unclear whether the $485,597.86 calculated by Elsa includes all of the changes to and all of the extras on the project being claimed by WBL. At one point in her direct examination, Elsa suggested that the figure does include all of those but only where there is an invoice that has been disclosed.

[80] It should also be noted that Elsa has been inconsistent on the total amount paid to date by the Bells. At her examination for discovery, she appeared to agree with the amount stipulated on the second page of WBL’s final bill rendered in October 2014 - $460,273.25. That, of course, is different than the figure of $476,290.65 as calculated by Elsa on the spreadsheet that she prepared for trial.

[81] The spreadsheets are illustrative of what the Defendants say are lingering questions/concerns that they have. As a few examples only, are we sure that all of the invoices from subcontractors being relied upon by WBL relate to the Bell project? Adam testified that they do (he seemed perplexed at the suggestion that they might not). I accept that evidence. Why is the labour rate being charged at $35.00 per hour when the handwritten WBL log of hours (Exhibit 2, tab 15) shows a rate of $30.00 per hour? Adam testified that the said document was for internal use only and was disclosed as part of the litigation but not meant as a bill or invoice to the Bells. I accept that evidence. How can it be that the markups referred to by WBL in its document at tab 12 of Exhibit 1 are based on such precise time spent on the job (like fractions of an hour) in the absence of employee timecards or something similar? Unfortunately, Adam was not questioned about that when he testified. Finally, as per Elsa’s spreadsheet marked Exhibit 8, why are there so many hours of work being claimed by WBL for some of the changes to and extras on the project, such as what Elsa has calculated to be 180.874 hours on the shower? Again, unfortunately, Adam was not questioned about that when he testified.

[82] In her testimony, Elsa acknowledged that the original Proposal price was just a “ballpark”, “baseline”, “starting point” (all expressions used by her), and that the Bells knew from the outset that there would be extra costs above and beyond that.

[83] In fact, Elsa made a critical admission during her cross-examination at trial. Frankly, the case could be decided on that acknowledgement alone. She testified that it was well known to her and her husband (Adam had told them explicitly at the outset) and understood by them that the total construction cost would end up being thirty per cent or so above the $465,000.00, approximately, originally quoted.

[84] It turns out that WBL’s current claim, in total (about $110,000.00), amounts to considerably less than thirty per cent of $465,000.00 ($139,500.00).

[85] In the circumstances, one might think that the Bells would be pleased.

[86] Elsa had great difficulty in cross-examination at trial in answering whether, assuming WBL built the house to the specifications and as per the Proposal, regardless of what its labour rates or hours or actual costs were, WBL would be entitled to payment of the $464,653.30. She wavered considerably on that point.

[87] It is obvious to me that the answer to that question is “yes”.

[88] For example, it was entirely up to WBL to decide how to divide up the contract price between the cost of materials and labour. To offer an extreme illustration, if WBL was able to obtain all of the materials for free, that would not have changed the deal made between the parties.

[89] This explains why, with respect, much of the evidence offered by the Bells, and many of their lingering questions/concerns, are irrelevant. Elsa, in particular, through her spreadsheets, wants to re-open the entire build including everything quoted on the original Proposal.

[90] That is not what this case is about. It is about changes to and extras on the project.

II. Analysis

[91] The reader will note that, interspersed with the summary of the evidence at trial included in the above section of these Reasons, certain findings were made.

[92] There is more that needs to be said, however.

The Big Picture

[93] First, using the cost approach, this home has been appraised at a value of $595,000.00, excluding any and all extras (Exhibit 4).

[94] WBL’s total claim, including all extras (about $110,000.00), if added to the cost of the original Proposal (about $465,000.00), amounts to less than $595,000.00.

[95] Common sense suggests that the Bells are getting a deal.

[96] Second, everyone knew from the outset that the total project cost would be thirty per cent or so above the original quote.

[97] WBL’s current claim, in total (about $110,000.00), amounts to considerably less than thirty per cent of $465,000.00 ($139,500.00).

[98] Again, common sense suggests that the Bells are getting a deal.

[99] Third, Sollazzo’s uncontradicted expert opinion is that the extras are worth about $90,000.00, before tax.

[100] WBL is claiming about $82,000.00, before tax, for the extras.

[101] Once again, common sense suggests that the Bells are getting a deal.

Key Admissions Made by the Bells

[102] WBL’s claim has two components to it – changes to and extras on the build.

[103] On the former, given Elsa’s testimony in cross-examination at trial, it can now be definitively stated that the only remaining issue is the fair cost of the changes (they were all authorized, they all resulted in some cost that increased the total price, and the Bells have to pay for all of them).

[104] On the latter, given Elsa’s testimony in cross-examination, it can now be definitively stated that the only remaining issues are (i) whether the clean-up, snow removal, dumpster and truck rentals are extras at all, and (ii) the fair cost of each extra (those four and all of the others as well). No longer is it disputed, if it ever was, that the extras, besides those four, are legitimate ones that were authorized by the Bells and for which they must pay.

[105] On both the changes to and extras on the project, to counter the evidence of WBL and Sollazzo, the Bells have no evidence to offer as to what they are worth. They simply dispute some of the figures.

[106] The more detail that is provided by WBL, the more the Bells dispute the charges. For example, Elsa agreed with the plumbing, electrical and stone charges back in April 2015 but now, with more and not less detail having been provided, she is not sure.

[107] Thus, the case boils down to this. The Bells got a good deal by any measure. But they have lingering questions. So do those lingering questions mean that WBL has failed to prove its claim on a balance of probabilities?

[108] No. The claim has been proven.

[109] I agree with all of the parties that the changes to and extras on the build could have been handled better. They could have all been documented as to cost and authorized in writing in advance, for example.

[110] Friendship got in the way of ideal business practices.

[111] I also agree with the Bells that undertaking an exhaustive after-the-fact analysis of the Proposal, invoices, labour sheets and WBL’s explanations of the changes to and extras on the project results in, as some of Elsa’s spreadsheets show, some strange things, such as fractions of hours spent on some tasks and seemingly inordinately high amounts of labour expended on certain tasks.

[112] But that is no reason to deny the claim, not in the face of what was, unquestionably, a good deal for the Bells.

[113] This case would be a different one if the Court had any concern, on the evidence, that the Bells overspent, or that they were in any way taken advantage of by the builder, or that they had things done to their house that were not approved by them, or that the workmanship was generally poor, as examples, but none of those is present here.

Conclusions on the Changes to and Extras on the Project

[114] I repeat, below, the key questions to be answered, and I set out the Court’s conclusion on each.

[115] On the changes to the build, what is a fair cost for those items? In the absence of anything from the Bells, I conclude that a fair cost is what is being claimed by WBL, as explained in significant detail by Adam in his testimony with reference to the documents contained in Exhibit 1 (primarily tab 12), and as supported by Sollazzo’s evidence.

[116] On the extras to the project, are the four items (clean-up, snow removal, dumpster charges and truck rental charges) actually legitimate extras? Yes they are. I accept the evidence of Adam in that regard. I see nothing that would indicate that those items were included in the original Proposal. And I see nothing nonsensical about those types of items generally being considered extras in the industry.

[117] Also with regard to the extras, not just those four items but all of them, what is a fair cost for them? In the absence of anything from the Bells, I conclude that a fair cost is what is being claimed by WBL, as explained in significant detail by Adam in his testimony with reference to the documents contained in Exhibit 1 (primarily tab 11), and as supported by Sollazzo’s evidence.

The Tarion Warranty Issue

[118] It behooves the Bells, in my view, to complain about this more than two years after the final bill was rendered by WBL and when they admit that they proceeded with construction fully aware, from the outset, of the fact that WBL was not registered under the legislation.

[119] I disagree with Mr. Treslan that WBL was not a “builder” under the legislation. It was. It was clearly responsible for completing the essential elements of the home. It had control over construction of the home. Tarion Warranty Corp. v. Kozy, 2011 ONCA 795, at paragraphs 15-17.

[120] But I agree with Mr. Treslan that there is more to the analysis. The contract is not necessarily void simply because of the fact that the legislation was not complied with. Both sides of this deal were equally sophisticated and deliberately chose to perform the contract outside the ambit of the legislation, and public policy dictates that both sides be held to its enforcement. Gurrieri v. Kaiser, 2011 ONSC 4471, at paragraph 13.

[121] Besides, it does not matter. Even if the build was illegal and the contract unenforceable, as pleaded by the Bells, in good conscience the claim of WBL could not simply be dismissed. It would succeed on a quantum meruit basis (in the absence of a legally enforceable contract, a reasonable sum of money to be paid for services rendered and work done).

[122] The Bells, through their counsel in closing submissions at trial, concede that WBL can make a claim based on quantum meruit.

[123] There is no dispute that the work was performed. The house was built. The changes to and extras on the build were done. On the evidence adduced at trial, there is no dispute about the quality of the workmanship or the materials supplied.

[124] One does not get a house for free.

III. Conclusion

[125] WBL is entitled to the total principal amount of $110,065.82 (changes to and extras on the build, including HST).

[126] Earlier this week, after the evidence at trial had concluded but before final submissions were made by counsel, the Bells made a payment of $40,000.00 to WBL.

[127] Thus, judgment is granted in favour of WBL in the principal amount of $70,065.82.

[128] The final bill was rendered in late October 2014. It would have been reasonable for the Bells to have paid that within about thirty days or so.

[129] Thus, the start date for prejudgment interest shall be December 1, 2014. The prejudgment interest rate shall be as per the Courts of Justice Act, not the two per cent per month claimed by WBL (or any other rate, for that matter).

[130] Although the two per cent per month is typed in very small print at the bottom of the Proposal, it does not appear anywhere on the final bill rendered in October 2014, and I am not satisfied that it was brought home to the Bells that the said rate would apply to any amount owing by the end of the build.

[131] Counsel, in crafting the formal Judgment, will have to ensure that prejudgment interest applies to the $110,065.82 figure from the start date until the date that the $40,000.00 was recently paid, and then it would apply to the $70,065.82 figure.

[132] Post-judgment interest shall also be at the Courts of Justice Act rate.

[133] If counsel cannot agree on costs, presumably in favour of WBL, then written submissions may be filed. WBL shall file within thirty days of today. The Bells shall file within fifteen days thereafter. No reply is permitted. Each submission shall be limited to two pages, excluding attachments.

Conlan J. Released: April 28, 2017