CITATION: Coliseum Paving Limited v. Romeo, 2017 ONSC 6416

COURT FILE NO.: 10723/15

DATE: 2017/10/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Coliseum Paving Limited

Wayne H. Redekop, for the Plaintiff

Plaintiff

• and -

Grant Michel Romeo and Lisa Irene Romeo

Jessica Kuredjian, for the Defendants

Defendants

HEARD at Welland, Ontario: October 23 & 24, 2017

The Honourable Justice D. L. Edwards

JUDGMENT

1This is a construction lien action by the plaintiff, Coliseum Paving Limited, against the defendants, Grant and Lisa Romeo, for payment under the contract whereby it constructed an asphalt driveway, concrete curbs, concrete pad and sidewalk on the defendants’ property.

2The plaintiff asserts that it performed the work in accordance with the contract; the defendants agree that those items were installed, but assert that it was not in accordance with the terms of the contract. They agree that the concrete pad was constructed properly and that they should pay for it; the balance of the work, they assert, was not performed according to the contract.

3The main area of dispute is the water drainage off the asphalt driveway. The plaintiff’s evidence is that the driveway was installed in accordance with Grant’s instructions. The defendants submit that they insisted from the beginning that all water drain towards the street, and that, contrary to those instructions, most of the water from the driveway drains towards their neighbour, Rick Booth’s, property.

Background

4I heard a two-day trial on this matter. The plaintiff had three witnesses: three brothers who are owners of the plaintiff, and who each had some involvement with this construction project. The defendants also had three witnesses: the two defendants and their neighbour, Rick Booth.

5The first interaction of the parties occurred when Charlie Sferrazza went to the Romeos’ property and met with Grant. After discussing the matter with Grant, he gave him a quote. The quote dated May 11, 2015, provided three options depending upon the scope of work selected by Grant. For $10,500 the plaintiff would concrete the back pad, install concrete curbs and asphalt the driveway. If the concrete pad was not installed, the price was $8,500. The third option was to supply dirt at $500 per load.

6In handwriting, which Charlie stated was his handwriting, it is noted on the quote:

Excavate as required

Form concrete curb @rebar

Excavate on grade form rear patio wire mesh

Supply place & finish concrete

Final grade and pave

7It is agreed that Grant subsequently contacted Charlie and instructed him to proceed with the work.

8What is in dispute is the nature of their discussions about water drainage.

Discussions Prior to Commencement of Work

9Charlie testified that he told Grant that he could not get the water to the street because the street was too low in relation to his home and the back shed. He said that the curb needed to be 10” higher otherwise the water would go towards the neighbour Rick Booth’s property. He said that he asked Grant whether he got along well with the neighbour, and said that water could not be sent towards the neighbour’s property without his consent. He said that on May 18, 2015 Grant told him that Rick was going to fix his property by adding fill to it, and that it was ok for the water to go towards the Booth property.

10Grant denied this. He said that he told Charlie that the biggest issue that he had was that he wanted the water to flow towards the street, and not towards the neighbour’s lands. He testified that Charlie said that he could pitch the driveway and make water go wherever he wanted it to go.

11Tony Sferrazza testified that he is the foreman of all of the plaintiff’s jobs. He said that normally he receives the quote from Charlie and then goes to the site. After reviewing things, he discusses issues with the owner. Tony has a civil engineering technician degree from college. He has been working for the plaintiff for 31 years and is a part owner.

12He said that when he first arrived on the job site, he spoke to Grant and asked him to move his car and then discussed the scope of work with Grant. Next, he took grade shots to determine elevations of various locations. The shed in the back yard was lower than the road; the sidewalk slab parallel and closest to the road was lower than the road. This meant that the driveway could not slope from the shed towards the road.

13Tony testified that the options were to raise the curb on the right side to catch the water or drain the water towards the neighbour’s property. He said that Grant insisted on a flush curb. Also, Grant said that as there was already a weeping tile down the side of the driveway, it was okay to let the water go towards the neighbour’s property. Grant also approved removing the sidewalk parallel and closest to the street and putting it back in at the correct elevation for $500 extra.

14Grant testified that on the day that Tony first arrived on the job site, Tony asked him to move his car, but they did not have any further discussions.

15Tony also testified that he told Grant that the curb required soil support on the right side of the curb towards Rick’s property. Grant told him that was not an issue and to put the soil there. He said that Grant wanted the floating curb which holds the asphalt in, moves with it and is re-enforced with rebar vertically and horizontally.

16Grant said that he did not discuss that the curbs would have no foundation.

17However, in the request to admit, both defendants admitted:

Prior to commencing work, representatives of the Plaintiff discussed the work to be performed with the defendant, Grant Michel Romeo, including the scope of the job, elevations, curb construction (floating) and curb support (soil).

18Tony testified that only after Grant gave the “green light” did they pour the curbs and put the dirt in place. He said that Grant was well aware of the dirt that they placed on the right side to support the curb, and that Grant indicated that he would dress it up with top soil.

Construction

19Charlie testified that in early June of 2015 Grant called and said that the neighbour wanted the dirt removed that was supporting the curb on the right side. He said that he met with Grant and Rick Booth at the Romeo home. He said that he told them that the curb needed support and gave Grant options. Charlie agreed to remove the soil. He said that a few weeks later Grant called to say that he and Rick would put up a fence to support the curb.

20Grant testified that Rick Booth, his wife Wendy; his wife, Lisa and he met with Charlie at their home to discuss the dirt. He said that this was the first time that he was told that it was a floating curb. Grant said that a few days later Rick approached him and suggested a privacy fence be erected along the right curb from the rear of the driveway up to the front of Romeo’s home. Grant said that Rick said that this would solve two issues: it would support the curb and give him some privacy since his home was lower than the Romeo’s home. He said that he and Rick built the fence for a cost of $1,800.

21Grant said that Charlie came back to the property and met with him and his wife, Rick and his wife. He said that Charlie said that the fence looked solid. Grant said that he asked for, and got reassurance that the water would flow from his driveway to the road.

22Rick Booth testified that one day he came to his cottage and was shocked that dirt had been placed about 5 feet onto his property alongside the curb. He wanted it removed.

23Rick said that Charlie came to the property and that he, Rick, Charlie, and at one point, Lisa joined in a discussion. He said that he told Charlie that he wanted the dirt removed.

24Rick did not testify that the grading or water flow was discussed at this time. He said that they erected the fence to support the curb and for no other reason.

25Tony said that the day that they paved, he asked Grant to move his car and that Grant said that it was a great job that they were doing.

26Tony also testified that 30% of the water from the entire driveway flowed towards the Booth property and the balance drained towards the road or the rear of the Romeos’ property.

27Grant said that the day the asphalt was laid he was home, but only spoke with Tony when he was asked to move his car. He then left for a few days to Hamilton.

28Grant testified that while he was away Rick called him to tell him that there was a problem. When he got home, Grant took his hose out and watched the water run along the driveway. He said about 90% of the water flowed onto Rick’s property, as well there was pooling on the driveway—so he called Charlie.

29Grant said that in a few days Charlie came and did the hose test. He said that he saw that the water flowed towards Rick’s property. He said that Charlie’s only response was that he would discuss with work crew and get to bottom of it.

30Grant testified that Charlie came back to his home and met again with Rick and him. He said that Charlie offered solutions that included digging a swale on Rick’s property, weeping tiles along the right side of the curb on Rick’s property, and paving stones on top of the curb to stop the water. None of these were satisfactory to him.

31Rick testified that one day when he went to his cottage, he saw that the asphalt driveway had been poured and the grade caught his eye. He said that Grant and Lisa were not home so he called Grant and voiced his concerns. He got a hose out and poured water onto the driveway and said that the water clearly went straight onto his yard.

32Rick said that Charlie came to the property and met with him and Grant. He gave them options including weeping tile and a swale, both of which would be on Rick’s property. They were not satisfactory to him.

33Grant said that the only solution was to take out the asphalt to re-pour with the proper grade.

34There were a couple of more interactions, but they are not directly relevant to the issue before.

35An invoice dated July 21, 2015 in the total amount of $12,995.00, being $10,500 for the main contract, $500 for the sidewalk; and $500 for removal of fill against curb, plus HST. The contract and the invoice show interest accruing at the rate of 24%.

Analysis

36The nub of this matter is what were the terms of the contract. The interactions after construction may assist in clarifying those terms or assist in determining credibility, but the heart of the matter are the contract terms.

37I prefer the evidence of the plaintiff’s witnesses with respect to what constituted the terms of the contract to the evidence of Grant and Lisa for reasons which I will outline below.

38The evidence is clear that Lisa was not involved in the negotiations of the contract. Those discussions occurred between Grant and Charlie, and according to Tony, also with him prior to the start of construction. Therefore, her testimony does not assist in determining this issue.

39It is significant that the defendants admitted, by virtue of the Request to Admit, that prior to commencing construction the plaintiff discussed the scope of work, elevations, curb construction (floating) and curb support (soil).

40Also, I note that the quotation has the option of supplying dirt. The only evidence that I heard on the purpose of dirt was to support the floating curb.

41Both of these are consistent with the evidence of Charlie and Tony, and inconsistent with Grant’s evidence. For example, Grant had testified that the first that he was aware of the curb being a floating one was after it was constructed. He gave no explanation why the quotation referred to dirt, or why he admitted via the Request to Admit that prior to construction he discussed with the plaintiff that it would be a floating curb that would be installed.

42The Request to Admit includes the admission that elevations were discussed prior to construction. I find that the acknowledgement that elevations were discussed is more consistent with Charlie and Tony’s evidence, than it is with Grant’s evidence. Elevations suggest a more detailed discussion compared to Grant’s evidence that he simply wanted the water to flow to the street.

43I do not accept Grant’s evidence that Charlie stated that he can get water to go anywhere he wants. It is basic common sense that water does not flow uphill.

44I accept Tony’s evidence that he precisely measured the heights of various spots and concluded that the shed at the rear of the driveway behind the fence was lower than the street, as was the portion of the sidewalk running parallel and closest to the street. Clearly water could not drain from the rear to the street by simple sloping.

45I accept that Tony is a qualified technician to measure elevations and has been doing this work at the rate of 100’s of driveways a year for over 30 years.

46I accept Tony’s evidence that the sidewalk closest to the street was lower than the street, and therefore, that sidewalk had to be raised, otherwise there would be a step between it and the driveway.

47I accept Tony’s evidence that about 30% of the water from the driveway drains towards the Booth’s property and that the balance drains either towards the rear of the Romeo property or towards the road.

48I accept Charlie’s evidence that he told Grant that Rick’s permission should be obtained if the water was going to drain upon his lands. I do not accept Grant’s evidence on this point. Although Grant said that it was his main issue from the beginning, I note that in his evidence Rick did not testify that he discussed water drainage at the meeting with Charlie that was called to discuss removal of the dirt, whereas Grant testified that this issue was raised at that meeting. Grant also testified that his wife and Rick’s wife were part of this discussion, whereas Rick said that his wife was not involved and Rick’s wife might have joined them part way thru the discussion.

49Therefore, I find that, prior to construction, that Grant instructed the plaintiff to install the driveway with the water to flow towards Rick’s property. According to all witnesses, that is in fact what the plaintiff did for a portion of the driveway. That is the major complaint about the quality of the job.

50As part of the allegation of improper drainage, both Grant and Lisa testified that they have pooling of water after rainfall, but no pictures depicting that were provided to me, with the exception of one photo, which in my view does not show pooling. In the more than two years since the construction the plaintiffs have had ample time to obtain such evidence.

51I am not prepared to find that there is pooling on the driveway.

52Since I have concluded that the plaintiff constructed the driveway in accordance with the terms of the contract, I need not deal with the ancillary issues. For example, I have no evidence before me as to where the property line between the Romeos’ property and the Booths’ property is located. All of the parties acknowledged that they do not know exactly where that boundary is. It is possible that the water in fact drains onto the Romeos’ property. I simply do not know and, in any event, it is not relevant to the issue before me.

53As well, I need not comment upon the solutions offered by the plaintiff to solve the water drainage towards the Booths’ property, or any interaction between the parties after the work was complete. I find that after the driveway was paved, Rick has expressed concerns to the plaintiff and defendants that the water drains onto his property. However, since I have found that the plaintiff performed in accordance with the terms of the contract, those issues are not relevant to my determination. They may be relevant as between the Romeos and the Booths, but are irrelevant with respect to this claim.

Summary

54For the above reasons, I grant the plaintiff’s claim and order that the defendants pay the amount of the invoice of $12,995.00.

55The plaintiff also claims interest at the rate of 24% commencing 30 days after the invoice was rendered. The quote provided for that rate, as did the invoice. I find that the defendants owe interest in the amount of $6,750.00 up to October 20, 2017, plus a per diem of $8.54 thereafter.

56If the parties cannot agree upon costs, the plaintiff shall serve and file written submissions within 14 days. The defendants shall serve and file responding submissions within 7 days thereafter. Reply submissions, if any within 5 days thereafter. The submissions shall be limited to 3 pages.

D. L. Edwards J.