Build North Construction Inc. v. Quanbury Contract Interiors Inc., 2017 ONSC 4673
COURT FILE NO.: CV-1392-11SR
DATE: 20170811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Build North Construction Inc.
Plaintiff
– and –
Quanbury Contract Interiors Inc.
Defendant
Daniel C. Sirois, for the Plaintiff
Eric O. Gionet, for the Defendant
HEARD: September 12, 13, 14, 15, 16, 2016 and May 8, 9, 10, 11, 2017 and Written Submissions June 28, 2017
REASONS FOR JUDGMENT
HENNESSY J.
Overview
[1] Build North Construction Inc. (“Build North”) was the general contractor on a school construction project. They entered into a contract with Quanbury Contract Interiors Inc. (“Quanbury”) to install resilient flooring in areas of the school.
[2] The School Board claimed that the installation of the resilient flooring was deficient in that there were loose, lifting and flexing tiles in certain areas. There were also areas of telegraphing.
[3] Build North replaced the resilient flooring in all corridors and lobbies and any other tiles with a hollow sound at a cost of $122,161.83. Build North claims that Quanbury breached its contract by failing to install the flooring according to the Canadian National Master Construction Specification. It seeks to recover from Quanbury the full amount of the replacement costs. Quanbury denies that it breached its contract and denies that it caused any of the installation or construction problems.
The Contract
[4] The parties entered into a contract on July 1, 2009 when Build North issued a purchase order to Quanbury in accordance with its estimate to supply and install resilient flooring and rubber treads, as per the plans and specifications. The contract included a one-year warranty provided by Quanbury on its work and supplied materials.
[5] In June 2010, prior to starting the flooring installation, the plaintiff released Quanbury from any liability for damages incurred after the installation of flooring materials due to site conditions not at an acceptable level. Quanbury demanded this release after it learned that the vapour emission testing results were higher than permitted by the specifications. The defendant did not challenge whether the deficiencies were noted during the warranty period or whether the deficiencies amounted to work covered by the warranty. Quanbury admitted that the warranty was valid and applied to the installation of the flooring tiles.
The Issues
[6] The defendant conceded that there were areas where the resilient flooring tile did not properly adhere to the concrete substrate and that there were areas that showed telegraphing.
[7] This non-adhesion was obvious by sight and sound, and it was later confirmed by a post-removal inspection of the tiles and the concrete slab below. The telegraphing was also visible. The issues requiring resolution to determine liability for the problem raise the following questions:
What role, if any, did poor preparation of the slab play in the failure of the adhesive and in the telegraphing?
What role, if any, did excess moisture in the slab play in the failure of the adhesive or in the delamination of the tiles?
Plaintiff’s Position
[8] The plaintiff (Build North) led evidence and took the position that the defendant (Quanbury) failed to properly prepare the concrete substrate in a number of ways prior to installing the flooring.
[9] The plaintiff claimed that the non-adhesion of the tiles and the telegraphing were the results of poor installation, more particularly:
a failure to prepare the concrete substrate in accordance with the specifications and/or normal practice of the trade;
a failure to prepare the concrete substrate in accordance with the resilient tile manufacturer’s instructions by applying patching compound to all “low” areas and grinding the “high” areas to achieve the desired “levelness”;
a failure to fill all saw cuts, cold joints, expansion joints and other voids with adequate patching compound (or at all); and
a failure to clean the concrete substrate adequately (or at all), of dirt and debris prior to installing the resilient tile flooring.
[10] The plaintiff relied on the following Canadian National Master Construction Specification that it says form part of the contract:
Sections 09 65 19 Resilient Tile Flooring
Related Sections
Sections 03 30 000 Cast in Place Concrete
Sections 03 35 00 Concrete Finishing
[11] The witnesses for both parties agreed that the flooring installer was responsible for preparing the sub-floor (the concrete slab) before commencing the installation.
[12] The Resilient Tile Flooring Specification 09 65 19(3.3) requires the installer to:
Clean floor and apply filler; trowel and float to leave smooth, flat hard surface. Prohibit traffic until filler cured and dry.
Remove sub-floor ridges and bumps. Fill low spots, cracks, joints, holes and other defects with sub-floor filler.
Seal concrete to flooring manufacturer’s printed instructions.
[13] The plaintiff takes the position that the patching, filling and skimming were deficient in both how they were done and in the extent of physical coverage of the various substances. The plaintiff retained Terraprobe Inc., Consulting Engineers (“Terraprobe”) to examine the problem areas of the installed flooring.
[14] Terraprobe examined the areas where the flooring was installed before and after removing the tiles. Mr. Denis Paquette, P. Eng. of the firm was qualified to give opinion evidence on the effects of vapour emissions on adhesives, the meaning and consequences of hollow sounds from tiles on concrete slabs, the curing rate of concrete and the effects of curing. He gave evidence of his observations and findings. He commented on the patching, filling and levelling (skim coat) that was required to ensure a hard flat surface that would accept the resilient tile.
[15] Mr. Paquette observed that the tiles immediately adjacent to the block wall were flexing and allowing water to penetrate and seep through the seams or around the edges of the tiles. In his report, Mr. Paquette set out his observations that:
The adhesion issues were limited to wall intersections, door frames and along some expansion floor joints;
The adhesive performed in areas where the substrate was properly prepared;
The joints at the intersection of the walls and the concrete floor were not properly prepared by cleaning the surfaces to remove all dirt;
Dirt and debris were observed along the intersection of the walls, showing telegraphing;
There were levelness problems at wall intersections and around doorframes.
[16] Mr. Paquette testified that the tiles exhibited looseness and delamination and gave hollow sounds when tapped at wall intersections and around doorframes. He observed voids at the wall intersections where the tiles did not adhere to the concrete. He attributed the non-adhesion to insufficient or deficient treatment of the concrete slab to attain levelness.
[17] The plaintiff also noted that the telegraphing of dirt and debris under the tiles became apparent soon after installation and continued after a few months of regular cleaning. In the cleaning operation a burnisher or floor polisher caused slight burn marks where there were high spots on the tile caused by something between the tile and the concrete floor, for example, drywall putty, a screw head or a piece of drywall. These items were discovered once the tiles were lifted.
[18] The plaintiff based its position on the observations and findings of Terraprobe.
The Defendant’s Position Re: Preparation
[19] The defendant agreed that the flooring contractor is responsible for patching the low spots and grinding the high spots as necessary to prepare the concrete for the installation. However, the defendant denies that the plaintiff has proven a breach of contract. Quanbury claims that:
• There is no evidence connecting the loose or telegraphing tiles to poor preparation of the slab;
• The plaintiff’s expert did not provide reliable observations or opinions;
• Quanbury was not responsible for levelness of the floor;
• The excess moisture in the slab and/or the fibreboard detail contributed to the problem of loose tiles.
[20] Quanbury contends that the plaintiff has not proven that the preparation of the concrete substrate caused the deficiencies.
[21] The defendant claims that the delamination of the tiles resulted when the concrete slab released its excessive moisture. Quanbury argued that the concrete slab did not meet the specified standard for vapour emissions prior to the scheduled installation of the flooring. However, because the plaintiff was urging the defendant to proceed with the floor installation, the defendant required the plaintiff to release Quanbury from responsibility for any floor installation issues arising from “site conditions not at an acceptable level.”
[22] The defendants made a multipronged attack on Mr. Paquette’s evidence and reliability. In the end, they argued that his evidence should be disregarded, especially as it concerns reliability of his observations of the concrete substrate, its preparation and the curing process for concrete. The defendant argued that the delaminated tiles were only observed after the concrete slab released its excessive moisture and that the border tile problem was a design issue related specifically to the fibreboard detail.
[23] With respect to the telegraphing tiles, the defendant notes that the plaintiff’s witness, Mr. Presot, said that this issue was not attributable to the defendant but to the movement in the expansion joints. In any event, the defendant submitted that there have been some tiles that telegraphed due to the preparation process, but these only accounted for several dozen, which Quanbury offered to replace.
DISCUSSION/ANALYSIS
[24] In order to succeed on its claim, the plaintiff must prove on a balance of probability that the deficient work of Quanbury caused the deficiencies and that the repairs and restoration done were the necessary and appropriate response to the deficiencies. The defendant is not required to prove the cause of the deficiencies.
Re: Moisture Emissions
[25] Although the defendant is not required to prove the cause of the deficiencies, the defendant spent much time and energy attempting to show that the concrete slab continued to emit moisture following the installation of the flooring and that this excess moisture was a possible cause of or contributing factor to the delamination of the tiles. If that theory were correct, Quanbury would not be liable for the damages because Build North had relieved them of responsibility for damages arising from the excess moisture in the concrete.
[26] The parties generally agreed that the curing process for concrete allows for the evaporation of moisture from the slab. One way to determine if the curing process is complete is to measure the moisture emissions. These moisture emissions must meet certain levels for the slab to be considered ready for the installation of flooring. The last tests were performed approximately one month before installation began and showed moisture levels in excess of the permitted amount.
[27] The defendant’s evidence on the moisture emissions and the curing process of concrete came primarily from Mr. Mike Quanbury, the owner of the defendant company. Other evidence came through the cross-examination of Mr. Paquette and other witnesses for the plaintiff. There was no expert evidence to assist the court with the defendant’s theory that concrete released its moisture through the path of least resistance and that this path coincided with the areas where there were deficiencies. The defendant related this theory to the areas where there was fibreboard; however, there was no consistent co-relation between the location of the deficiencies and the location of the fibreboard. The evidence showed that in one area fibreboard was installed on both sides of the corridor, but the deficiencies were only evident on one of the walls.
[28] In its written submissions, the defendant significantly reduced its reliance on the theory of moisture emissions as the cause of the delamination.
[29] I cannot agree with the proposed theory that excess moisture in the concrete caused or contributed to the delamination of the tiles.
[30] I accept the evidence that concrete releases moisture over the entirety of the slab. As such, if moisture emissions were to contribute to delamination, the problem would be across all areas of the installation rather than in the specific areas of the wall intersections, doorframes and expansion floor joints.
Re: Preparation of the Concrete Slab
[31] The defendant argued that it has not been shown exactly which tiles exhibited the problem of delamination or what the preparation was beneath those specific tiles. The defendant states that there is an absence of evidence connecting poor preparation to the problem tiles.
[32] However, there was direct evidence through witness observation, photographs, and videos of the poor preparation of the substrate in areas where the tiles were loose, curling, flexing or producing a hollow sound. All of these descriptors denote delamination. The observations were made during and after the tile removal. In many locations, Mr. Paquette, P. Eng and Mr. Presot and Mr. Cantin, P. Eng. found examples where the patching, skimming and other materials used to prepare the floor either were not applied or were insufficiently applied to smooth out the floor to provide a hard flat surface to apply the adhesive. In some cases, there was evidence of insufficient grinding to achieve levelness. There was evidence of hollows, voids and depressions not filled, bumps not flattened and joints not levelled. They observed tiles curling and loose. They were of the view that these matters should have been addressed as part of the specified preparation.
[33] Quanbury did apply the plani-patch, filler and skimmer. Those applications were evident from the photos of the tiles, which were removed. However, those who attended the removal of the tiles noted many instances where these applications or the preparatory work did not sufficiently smooth out the joints or extend to the doorframes or the block wall.
[34] It was not controversial that the flooring installer was responsible for cleaning, minor patching, scraping and skim coating to address the unevenness caused by ridges, protrusions, trowelling or over sprays in order that the floor was prepared for the application of the adhesive.
[35] The defendant argued that notwithstanding the preparation deficiencies that were found once the tiles were removed, the plaintiff could not point to one or more exact tiles where there was a deficiency in concrete preparation and the delamination of that specific tile. The defendant states that this lack of evidence of connection is fatal to the plaintiff’s claim.
[36] I disagree. The defendant is suggesting a burden of proof that is closer to the criminal standard of proof beyond reasonable doubt or something closer to 100%. The plaintiff is not obliged to remove each deficient tile (which were spread over a number of different areas), number each one and give evidence per tile on the deficiencies found under that numbered tile. That is what the defendant seemed to suggest in its argument.
[37] In fact, the deficiencies which were identified (i.e., across areas of control joints, at doorframes or along walls) were not one-tile problems. The proportionate response by the contractor after resolution discussions failed was to remove the tiles in the problem areas to further investigate. They did arrange for removal in the problem areas, i.e. where there were hollow sounds and loose tiles. Upon removal of the tiles where they had noted delamination, representatives of the plaintiff found examples of unaddressed or underprepared ridges, protrusions and voids. These were deficiencies in the preparation of the slab.
[38] Mr. Paquette, the plaintiff’s witness who was retained to investigate the problem, noted that he observed dirt under the tiles along the wall and door frames, adhesive used to fill voids where a levelling course should have been used, and dirt or debris under tiles where there was telegraphing. Throughout the report, Mr. Paquette refers to the problem areas and then his observation of the substrate preparation. This evidence provides sufficient connection between the problem areas and the deficient preparation.
[39] Where the tiles had been removed in areas where there had been telegraphing, the plaintiff’s representatives also found debris that had telegraphed through the tiles before or after the cleaning process.
[40] I am satisfied based on all of the evidence that the plaintiff has proven beyond a balance of probabilities that the defendant did not meet the contract specifications with respect to the preparation of the concrete substrate. I am satisfied that this faulty preparation caused the delamination, looseness, hollow sounding and flexing of the tiles. By not preparing the concrete floor adequately, Quanbury breached its contract with Build North.
Other Issues Re: Preparation
[41] Let me comment briefly on an issue that was the subject of much evidence and argument: the responsibility for meeting “tolerances”. The plaintiff alleged that one of the problems with the installation was the “floor did not meet tolerances”. With respect to the concrete slab being out of level, the defendant submitted that there is no contractual responsibility upon Quanbury to ensure the concrete slab meets level tolerances. Additionally, the defendant countered that the concrete contractor was responsible for providing a concrete slab that met the specified tolerances.
[42] However, as I understood the evidence and the argument of the parties, they were talking about two different things. The plaintiff was referring to the obligation of the flooring contractor to apply patching compound to all low areas and to grind the high areas to achieve the desired levelness for installation. This requirement recognizes that no slab is perfect when it is poured. As I understand the defendant’s position on this question, when it refers to the obligation to achieve tolerances for level, it is referring to the obligation with respect to the overall floor area.
[43] As a result of my finding on the preparation, it is not necessary for me to discuss this matter further. Suffice it to say, I do not suggest that the flooring contractor was responsible to meet the obligations of the concrete contractor. My finding is with respect only to the obligations of the flooring contractor for proper preparation of the concrete floor prior to applying the adhesive and installing the floor.
[44] The plaintiff is successful on this claim. Quanbury had a contractual obligation to install the flooring in a workman-like manner. It failed to do so, and its failure resulted in deficiencies.
[45] The cost to remove the tile, redo the floor preparation and install new flooring tiles was $122,161.83. There was no dispute as to the amount required to complete the remedial work, except for two items of the claim:
• $9,400.68 for office administration
• $4,700.34 for profit
[46] The plaintiff no doubt had administration costs related to the removal and re-installation of the flooring. These costs were a direct result of the breach of contract.
[47] With respect to the amount claimed for profit, there was no evidence led on this item. It is unknown whether the project overall met profit expectations. There shall be no recovery for loss of profit.
[48] The plaintiff is entitled to recover $122,161.83 less $4,700.34, for a total of $117,461.49 plus interest.
[49] If the parties cannot agree on interest and costs, they may make submissions in addition to filing a bill of costs as per the schedule below. Submissions may be no longer than three pages and should address any offers and the issue of proportionality.
[50] The plaintiff shall file within fifteen days of receipt of this decision; the defendant shall file within ten days after that. The plaintiff may file a one-page reply submission within five days after receipt of the defendant’s submissions.
The Honourable Madam Justice P. C. Hennessy
Released: August 11, 2017
2017 ONSC 4673
COURT FILE NO.: CV-1392-11SR
DATE: 20170811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Build North Construction Inc.
Plaintiff
-and-
Quanbury Contract Interiors Inc.
Defendant
REASONS FOR JUDGMENT
Hennessy J.
Released: August 11, 2017