CITATION: Brough v. Lebeznick, 2017 ONSC 678

COURT FILE NO.: 13-187

DATE: 2017 01 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brough and Whicher Limited

E. Treslan, Counsel for the Plaintiff

Plaintiff

• and -

Donald Lebeznick and Lynn Lebeznick

M. Raithby, Counsel for the Defendants

Defendants

HEARD: April 18-22, 28 and 29, 2016

Written submissions completed June 23, 2016

REASONS FOR JUDGMENT

LEMAY J

[1] In 2012, the Plaintiff, Defendant by Counterclaim, Brough & Whicher Limited agreed to build the shell of a home for the Defendants, Donald and Lynn Lebeznick on a piece of land on the northern Bruce Peninsula. The Lebeznicks were planning to complete the interior finishes on the home themselves and move into the house sometime in 2013.

[2] The relationship between Brough & Whicher and the Lebeznicks ran into trouble in the spring of 2013. By the end of July, 2013, Brough & Whicher took the position that they had completed their work. The Lebeznicks, on the other hand, believed that there were significant deficiencies in the home, and refused to pay Brough & Whicher $66,615.98, which was the final amount that Brough & Whicher claimed the Lebeznicks owed under the contract.

[3] Brough & Whicher filed a construction lien on the property in August of 2013, and subsequently commenced this action for full payment of the contract. The Lebeznicks counterclaimed for deficiencies and damages. The parties proceeded to a seven day trial, and I am now left to decide the case.

Issues

[4] The following issues are to be determined on this case:

a) What was the scope of the contract and contractual relationship between the parties?

b) Was the contract between the parties breached? If so, what were the breaches?

c) What costs should be accepted for certain repairs where the parties agreed that the repair was necessary?

d) Is any of the construction work that was performed by Brough & Whicher either structurally unsound or not in compliance with the Ontario Building Code?

e) What damages, if any, should be awarded to the Defendants on account of their counterclaim?

[5] I will address each of these issues in the sections that follow. However, the Lebeznicks have claimed approximately 35 deficiencies and/or breaches of contract. Those appear in a “Scott Schedule” that I had the parties create during the course of the trial. My disposition of specific issues appears in the final Scott Schedule attached to this decision as Appendix “A”. These reasons will address the larger issues that arose in this case, and will address in detail specific issues only as necessary.

[6] I should note one fact about the Scott Schedule. Since it addresses the Lebeznicks’ claims, they were listed as the Plaintiffs on the Schedule that the parties filed after the conclusion of the trial. I have changed that to reflect that they are the Defendants, Plaintiffs by counterclaim. I refer to the Lebeznicks as the Defendants throughout these reasons and in all of my comments on the Scott Schedule.

Background Facts

[7] The parties filed an agreed statement of facts, which was Exhibit 1 in the Trial. I have relied on that statement in making my findings of fact, but will set out my own more detailed and complete summary of the facts.

a) The Plaintiff

[8] Brough & Whicher is a company that manufactures roof trusses, log homes and other products. Among other operations, they run Frontier Log Homes, which is a company that builds log homes. Brough & Whicher has been in business at least half a century.

[9] Rupert Evans is a shareholder in the company. He is also the supervisor of operations for the Company, and was the main point of contact for this project. He has worked for Brough & Whicher for approximately 25 years, and has been an owner of the company for approximately 15 years. He has spent approximately 45 years, his entire career, in the building industry.

[10] I note that the company name on the contract is Frontier Log Homes Ltd. However, in his evidence, Mr. Evans explained that Frontier Log Homes Ltd. is the trade name for the log home division, and that all payments were made to Brough & Whicher. As a result, I have referred to the Plaintiff as Brough & Whicher throughout my reasons.

b) The Defendants

[11] Both of the Defendants lived in Windsor at the time that this contract was entered into. Ms. Lynn Lebeznick (“Lynn”) has been retired for quite some time, having retired after an accident in the early 1990’s. Her family had property in the Bruce Peninsula, and her father sold this property some time ago.

[12] As a result, she and her husband, Don Lebeznick, (“Don”), decided that they wanted to buy a property on the Bruce Peninsula, with the goal of building a retirement home. They ultimately purchased a property in the early 2000’s on Dorcas Bay Road in the northern part of the Bruce Peninsula. Their plan was to build their dream retirement home on this property.

[13] Don is a welder who retired in 2013. As a result, they were looking to build a home on their property in 2012 and 2013. They contacted the Plaintiff and entered into a contract to build part of the home. Work was started on this project in late 2012. It was intended that Don would do some of the finishing work (such as drywall) in the home.

c) The Events Before July 31^st, 2013

[14] The parties signed a contract to build the shell of a home on November 23^rd, 2012. That contract states as follows:

Consideration

The parties hereto have agreed to the total consideration shell [sic] be $147,804.00 which amount includes all applicable taxes and have further agreed upon the following payment schedule:

• DUE ON SIGNING OF CONTRACT $14,125.00

• FIRST INSTALLMENT $50,850.00

• SECOND INSTALLMENT $22,600.00

• THIRD INSTALLMENT $33,900.00

• FORTH INSTALLMENT $11,300.00

• BALANCE DUE 30 DAYS AFTER COMPLETION OF SHELL $15,029.00

MAKE ALL PAYMENTS PAYABLE TO BROUGH & WHICHER LIMITED

Change Orders

Changes to the above custom plan must be made in writing and agreed to by both parties and added to the Agreement in the form of an adjustment to agreement. This form provides information and monetary adjustments to the overall cost to the agreement. A stop work will apply if an agreement cannot be reached and time frames will be adjusted to allow for slow down in the work process.

[15] However, the parties also discussed “extras”, which were to be performed by Brough & Whicher. These extras are set out in a letter from Mr. Evans to the Lebeznicks on November 26^th, 2012. The letter states that the costs “have not yet been quoted so are approximate at this time.” However, the letter also says that the following additions will be added to your contract and will be completed by the company. I will return to the significance of this letter below.

[16] Site clearing began in 2012, and construction began in early 2013. There did not appear to be any issues between the parties until sometime in mid to late spring of 2013, when the Lebeznicks became concerned about the pace of construction.

[17] At this point, the Lebeznicks lived in Windsor, and were looking to sell their house. They confirmed with Mr. Evans that construction at the Dorcas Bay property was likely to be completed in May or June of 2013. While the Lebeznicks had work to do inside the house, they presumed that they would be able to complete enough of this work that they would be able to obtain an occupancy permit by mid-August. As a result, the Lebeznicks sold their house in Windsor with a closing date of August 23^rd, 2013.

d) The Events After July 31^st, 2013

[18] By July 31^st, 2013, Brough & Whicher had determined that they had completed all of the work on the property. They asked for payment of the final invoice in the sum of $66,615.98. The Lebeznicks challenged this amount and provided both a list of deficiencies, and a cheque for $30,000.00, which indicated it was for final payment unless the deficiencies were addressed.

[19] Brough & Whicher responded through counsel and advised that they were prepared to provide a small credit of $395.50 for some sonotubes that had not been installed on the supporting pillars under the deck. However, they also advised that they would be putting a construction lien on the property unless the amount owing was paid in full.

[20] That lien was registered for $66,615.98 on August 7^th, 2013. The original lien form also showed an amount of $147,804.00, but any confusion was cleared up by the end of 2013 through an amendment to the lien. A lien for $66,615.98 remains on the property, although Brough & Whicher has conceded that the amount that they are actually claiming is less, as a result of deficiencies on the property that are now acknowledged to exist. There is no claim for damages as a result of the lien being higher than the amount being claimed.

[21] When the Lebeznicks’ Windsor house sale closed on August 23^rd, 2013, they did not yet have an occupancy permit for the Dorcas Bay home. As a result, they lived in a hotel on the Bruce peninsula for a period of time.

[22] In the meantime, work was continuing on the house, including plumbing and heating work as well as drywall. In the fall of 2013, a number of issues arose with respect to the heating contractor, and litigation between the heating contractor and the Lebeznicks ensued. In their pleading, the Lebeznicks blamed the heating contractor for at least some of the delay in being able to occupy the Dorcas Bay home.

[23] In October of 2013, the Lebeznicks decided that they needed to move back to Windsor, and they purchased another house in Windsor. They lived in that house until after they obtained the occupancy permit for the Dorcas Bay home as described below. As at the date of trial, it was my understanding that this home had not been sold.

[24] Ultimately, both parties retained experts who reviewed the house and assessed the deficiencies. Reports were prepared in 2014 and 2015, and exchanged.

e) Expert Reports

[25] Mr. Donald Tedford was tendered by the Plaintiff as an expert qualified to provide opinion evidence relating to the compliance with and interpretation of the Ontario Building Code. There was no challenge to his expertise by the Defendants. Mr. Tedford has been the Director of Development and Chief Building Official with the Town of Hanover for more than twenty years. He also does consulting work, and teaches courses on the Building Code. Mr. Tedford conducted a site visit to the house in November of 2013.

[26] Mr. Nelson Dawley was tendered as an expert on structural engineering and general construction practices by the Plaintiff. There was no challenge to his expertise by the Defendants. Mr. Dawley was retained to conduct a peer review of the Defendants’ engineering report. He did not conduct a site review of the premises.

[27] Mr. Gerry Zegerius was tendered as an expert on structural engineering and the Building Code to the extent that the Code is applied to issues relating to structural engineering by the Defendant. There was no challenge to his expertise by the Plaintiffs. Mr. Zegerius attended at the site to conduct a site visit on two separate occasions. Mr. Zegerius works for an engineering consulting company called Tacoma Engineers.

[28] In addition to the three experts, Mr. Evans and the Defendants, I heard testimony from Mr. Cliff McCartney, who is a principal of a company called Jesco. Mr. McCartney testified on behalf of the Plaintiff, and provided estimates on the costs to repair certain items. I also heard from Mr. Luis Andino, who is a principal of And-Rod Contracting. He actually completed some of the repairs, and provided testimony on behalf of the Defendants. Mr. Andino’s son runs a company called Decksperts. The repairs on the Lebeznicks’ property were completed by Decksperts and And-Rod, and the invoices came from Decksperts.

f) Occupancy of the House

[29] The Defendants were unable to occupy the house between 2013 and early 2016. In January of 2016, the Chief Building Official for the Township of Northern Bruce Peninsula identified two issues that remained outstanding. The first, the interior stairs, is an issue in this litigation. The second issue, which is not an issue in this litigation, was the use of a PVC pipe in circumstances where it should not have been used.

[30] These issues were remedied by the Lebeznicks and the occupancy permit for the house was granted by the Municipality of Northern Bruce Peninsula on February 22^nd, 2016.

[31] This factual summary brings me to the issues in dispute in this case.

[32] However, before I start that summary, I will briefly set out how I have addressed each of the individual issues set out in the Scott Schedule. In addition to setting out the scope of the contract (in the first section) and the Lebeznicks’ counter claim (in the fifth section), I have divided the potential set-offs into three different categories.

[33] First, there are the contractual breaches, where there is a dispute about whether the terms of the contract have been breached. Second, there are the cost claims- where both sides agree that there has been a breach, but they dispute the cost. Finally, there are the cases where the Lebeznicks can only claim a set-off if there has been a violation of the Building Code.

[34] The Scott Schedule sets out 35 issues. Where the parties have agreed on both the need for a repair and the cost of that repair, I will not conduct any further analysis. Where there are disputes, I will only address each issue once. As a result, if something is both a contractual breach and a breach of the Building Code, I will address it as a contractual issue.

Issue #1- The Scope of the Contract

a) The Terms

[35] I received in evidence a number of different documents that relate to the contract that the parties entered into for the construction of the house. The first is an Agreement dated November 23^rd, 2012, and signed by Mr. Evans and the Lebeznicks. This is clearly part of the contract, including the attached Schedule “A”, which sets out a list of items included in and excluded from the agreement.

[36] There are two additional documents that should be addressed. First, there is a Follow-Up letter dated November 26^th, 2012. I have set out the terms in that follow-up letter at paragraph 15, above.

[37] The Plaintiff submits that I should treat the Follow-Up letter as a non-binding letter of intent, arguing (at paragraph 22 of its submissions):

The plaintiff relies on the authority of Fraser Valley Industries Ltd. vs. Amble Construction ltd. [1999] B.C.J No. 1266 (Prov. Ct.) as support for the proposition that an unsigned letter of intent does not form part of a previously negotiated construction contract. Unlike the situation in the Fraser Valley, the prices quotes in the Follow-up Letter were explicitly described as “have not been quoted so are approximate at this time”. There was also not a single piece of documentary evidence produced by the defendants to support their assertion that the expected the plaintiff to complete the work described in the Follow-up Letter that ended up not being completed by the plaintiff. The plaintiff requests that the Court treat the Follow-up Letter as a non-binding letter of intent.

[38] There are three flaws with this argument. First, and most important, the Agreed Statement of Facts provides (at paragraph 5):

On or about November 26, 2012 the defendants entered into a supplementary written contract with the plaintiff, with respect to several “additions” to the items contained in the Contract (the “Extras”).

[39] Second, it is clear from the invoices that work was done to complete the septic system and other “extras”, which were excluded from the original contract. The work was performed and the invoices sent, which clearly suggest that the Plaintiff had contracted to perform this portion of the work.

[40] Third, it is clear from the Plaintiff’s damages claim that it is seeking to charge the Defendant for at least some of these “extras”. The original contract price, including HST was $147,804.00, inclusive of HST and disbursements. The Plaintiff has been paid $111,535.06, and is still claiming that there is a balance due of $66,615.99.

[41] In this respect, the decision of Fraser Valley Industries Ltd. v. Amble Construction Ltd. ([1999] B.C.J. No. 1266 (Prov. Ct.)) is distinguishable. In this case, the clear evidence before me is that the parties intended to treat the Follow-Up letter as part of the contract.

[42] As a result, I find that the Follow-Up letter is part of the original contract, and that the parties expected that these extras would be completed by the Plaintiff.

[43] This brings me to the issue of whether the plans should be treated as part of the contract. In his evidence-in-chief, Mr. Evans stated that the plans formed part of the contract, but that deviations were permitted as long as they met the Building Code.

[44] This statement is not consistent with the actual contract in two respects. First, the contract itself states that changes to the above custom plan must be made in writing and agreed to by both parties. Second, the Schedule “A” states that changes to the plan are billed as an extra and charged at $150.00 plus time and materials.

[45] In my view, minor variations from the plans that do not affect either the structural integrity or the enjoyment of the property would be permitted, preferably only after discussion with the Defendants. However, major deviations, or ones that have an effect on the enjoyment of the property should not be permitted even if the change is compliant with the Building Code, as the house would then be different from what was contracted for. As I review the various issues in this case, I will identify examples of each type in order to illustrate how this principle applies.

[46] With those observations in mind, I accept that the plans formed part of the contract between the parties.

[47] As a result, I conclude that the parties intended to treat the original contract of November 22^nd, 2012, the attached Schedule “A”, the drawings and the follow-up letter as the whole contract.

b) The Extras

[48] In terms of the costs of the extras, the Agreed Statement of Fact states that the parties dispute Invoice #14737, which was for an extra of $8,786.98. This invoice reads that it was for the Hydro line from the road to the house and for backfilling.

[49] Mr. Evans’ evidence on this invoice was that the statement “hydro line” was an error and that it should have been the Hydro duct from the house to the street. Mr. Evans also agreed that the backfilling had been done in 2012, and that the fact that it was not invoiced until mid-2013 was also an oversight.

[50] Ms. Lebeznick’s evidence was that the Lebeznicks had paid Hydro directly to have the Hydro lines brought in. There was some confusion about the trenching for the Hydro line and the Hydro line itself. Ultimately, there was an acknowledgement that these costs had been incurred and were owing from the Defendants to the Plaintiff. Mr. Treslan sets that conclusion out in his submissions, and Ms. Raithby did not challenge it in her reply. As a result, these costs are to be included as part of the contract price.

Issue #2 - Were There Contractual Breaches in this Case?

[51] Yes. The parties acknowledge in their agreed statement of facts that there were deficiencies in the work performed by the Plaintiff. The question is the extent of those deficiencies.

[52] I had the parties prepare a Scott Schedule which outlines the specific issues in dispute. Many of those issues were resolved on the basis that either the Plaintiff conceded that the repair was necessary, or that the Plaintiff did not believe it to be cost-effective to argue over some of the minor items.

[53] I intend to address a number of the larger contractual breaches individually, as follows:

a) The Construction Stairs

b) The sonotubes for the deck.

c) The steel I-beam.

[54] However, there are also smaller breaches, both conceded and ones that I have found to be breaches. In this section, I will analyze the Lebeznicks’ claims that there have been breaches of the contract.

[55] As the expert reports are relevant throughout the remainder of these reasons, I will start with an analysis of them, and then address the three individual breaches I have set out above. Any remaining issues will be addressed in the other sections.

a) The Expert Reports

[56] As outlined above, there were a number of expert reports placed in evidence in this case. In addition, I had a number of quotes for the work that was to be performed to consider both from people who testified and from people who did not testify. The quotes will be dealt with in the next section.

[57] All of the experts gave their evidence in a thoughtful, fair-minded manner. However, I am not completely content to rely on the expert reports of either side. Mr. Tedford tended to look for the quickest and most cost-effective solution, rather than the right solution or the contractually required solution. The best example of this is his view that the LVL Beam (discussed below) was suitable.

[58] Mr. Dawley did not conduct a site inspection, which makes his evidence somewhat less reliable than that of Mr. Zegerius. In addition, in his evidence on the sonotubes, Mr. Dawley stated that he would not recommend replacing them because that would be “punishing” the contractor because he did not follow the drawings. Mr. Dawley went on to say that the performance of the deck would not be effected by the missing sonotubes. This statement concerned me because it suggested that Mr. Dawley was not just focused on what repairs were necessary, but what effect the cost of those repairs would have on the Plaintiff. I viewed this as a desire to protect the Plaintiff.

[59] On the other hand, Mr. Zegerius’s evidence left me with a view that he tended towards over-engineering things. His solutions tended towards perfection, rather than compliance or suitability.

[60] As a result, I have carefully weighed the differences in the expert reports with these issues in mind.

b) The Construction Stairs

[61] This is item # 35 on the Scott Schedule. It is worth $270.00. It was, however, hotly contested between the parties. I intend to spend some time on it as I view the issue as being symptomatic of the larger issues between the parties.

[62] The agreement between the parties states that there will be “temporary construction stairs and safety railings to the second level.”

[63] The Plaintiff argues that I should give a plain and ordinary meaning to the phrase “temporary construction stairs and safety railings to the second level.” The Defendants disagree, and argue that they had been promised cedar stairs that were the same as the ones in Mr. Evans’ office in Wiarton.

[64] Mr. Evans has testified that there were no conversations about what the stairs that he was installing would look like. However, he did recollect that the Lebeznicks stated that they wanted the final stairs to look like the ones in his office.

[65] Lynn Lebeznick testified that she had two discussions with Mr. Evans about the stairs. First, in September of 2012, she recalls telling Mr. Evans that she wanted stairs like the ones in his office. Second, when she received the contract and it included the phrase “construction stairs” she contacted Mr. Evans again to ensure that they would be getting stairs like the ones in Mr. Evans’ office.

[66] I accept Lynn Lebeznick’s testimony on this matter. First, I found Mr. Evans’ evidence on this point to be vague, lacking in detail and inconsistent. He testified both that he had heard something about the final stairs being the same as the ones in his office, and that the issue was never discussed. Those statements are not consistent with each other. Second, Lynn Lebeznick’s evidence on this point fits with the sequence of events leading to the signing of the contract. Finally, as I will review in a number of areas (particularly the section on sonotubes), I generally found Mr. Evans’ evidence to be unreliable, and designed to minimize Brough & Whicher’s liability in this case.

[67] As a result, the cost of fixing the construction stairs is to be a set-off against the amounts owing by the Defendants under the contract.

c) The Sonotubes

[68] The sonotubes is Issue #28 on the Scott Schedule. The original drawings for the house called for sonotubes for the deck. These are tubes that go around the posts for the deck, and are filled with concrete. They help preserve the wooden posts longer. These sonotubes were not installed, contrary to the contract.

[69] Mr. Evans explained in his evidence that these tubes were not installed because it would have been impossible to do the back-filling around the septic system if the sonotubes were in place. He also testified that he had a discussion about this with the Lebeznicks at the job site.

[70] The problem with this evidence is that, on May 23^rd, 2013, Mr. Evans’ assistant sent an e-mail to the Lebeznicks that read:

Hi Lynn,

I talked to Rupert and the guys were at your place yesterday, the backfilling is done, the sono tubes are in for the decks, so things are moving along. It is very wet and cold here today and the weekend is not looking like it will warm up much, the mesquites and black flies are big and biting so if you come up don’t forget bug repellent. And dress like it is winter it is cold.

[71] It is clear from this e-mail that Mr. Evans’ staff had told the Lebeznicks that the sonotubes had been installed, when the Plaintiff had no intention of installing them. It is unlikely that Mr. Evans’ assistant sent this e-mail without his authorization, and I specifically reject Mr. Treslan’s submission (at paragraph 17 of his written argument) that this e-mail was sent in error.

[72] Given this e-mail, I reject Mr. Evans’ evidence that he had a discussion about the sonotubes with the Lebeznicks on the job site until it was too late to do anything about them. There was no agreement to make this change.

[73] Further, the way that the Plaintiff addressed this issue is indicative of its’ approach to this project. That approach can best be described as one where the Plaintiff lacked attention to detail in the work it performed, and sought ways to cut corners to improve the profitability of the project. When challenged by the Defendants, the Plaintiff then either tried to ignore the issue or adopted an aggressive approach to the issues raised by the Defendants.

[74] In my view, there was a general tendency on the part of the Plaintiff to do either the minimum required by the contract, or less than what was required by the contract, and then try and force the Defendants to accept the work as sufficient.

[75] In addition, in his evidence at trial, Mr. Evans generally tried to minimize his responsibility, and Brough & Whicher’s responsibility for any issues in the building. His testimony with respect to both the sonotubes and the LVL beam (discussed next) are good examples of this tendency. As a result, where his evidence conflicts with that of the Lebeznicks, I have generally preferred their evidence.

[76] This brings me to the damages for this issue. There are three different ways of looking at the damages for this non-compliance. First, the Plaintiff suggests that we simply look at the costs that the Plaintiff avoided by not installing the sonotubes. On the Plaintiff’s estimate, these costs are approximately $500.00 for the sonotubes and some concrete.

[77] I reject this approach. While it measures the benefit that the Plaintiff obtained by failing to perform the contract, this approach does not measure the damage that the Defendants suffered as a result of the Plaintiff’s failure. It is clear that the damage that flows from the failure to install the sonotubes is that the life of the posts (and possibly the deck) will be shortened, perhaps considerably, because the posts are in direct contact with the ground and will rot more quickly.

[78] The Defendants suggest that the proper measure of damages is based on an estimated quote from Ferraro Construction to remove the deck and replace the posts with proper sonotubes. I reject this position for two reasons. First, no one was called to explain the basis for the quotation. Second, the loss in this case involves a reduction in the life-span of the deck. Replacing the entire deck would result in overcompensation, in my view.

[79] In the alternative, the Defendants fixed some of the sonotubes and claimed the costs of repair. In support of this claim, they advance the costs to rectify the problem, which are included with the costs associated with the repair to the eccentrically loaded concrete footings (Issue #23). I accept that this is the appropriate way to measure the damages for the sonotubes, and therefore must consider if the total costs claimed for both repairs is reasonable. I will address this issue as well, as the two of them are related.

[80] I believe that it is common ground between the parties that, if the footings are on bedrock, then it does not matter if they are eccentrically loaded. If they are not on bedrock, then this is a repair that is required because it is both a breach of contract and a breach of the Building Code.

[81] Mr. Evans testified that all of these concrete footings were located on bedrock and, as a result, the fact that they were eccentrically loaded did not make any difference to their positioning. More generally, the Plaintiff argues that the Defendants did not tender any evidence that these footings were not on bedrock and, as a result, should not be entitled to any damages to fix this problem.

[82] In response, the Defendants point to the evidence of Mr. Andino, who actually repaired these footings. Mr. Andino described what he found when the posts were excavated. Specifically, he found that they were sitting on patio stones that were, in turn, sitting on sand. The bedrock was another twelve inches below. Mr. Andino then describes the remedial work.

[83] Mr. Andino was cross-examined about whether he did any independent investigation of whether these repairs were necessary, but he was not cross-examined about his observations. As a result, I accept his evidence that the eccentrically loaded concrete footings were not resting on bedrock.

[84] This leads inexorably to the conclusion that the repair for the eccentrically loaded concrete footings was necessary. I note that, on the Scott Schedule, the Plaintiff asserts that the eccentrically loaded concrete footings were related to issue #25. On reviewing my notes, it is clear that the repair was related to Item #23 on the Scott Schedule. As a result, the costs sought by the Plaintiff for Items 23 and 28 are to be included in the list of reductions on the Scott Schedule.

d) The Steel I-Beam (or LVL Beam)

[85] This is item # 18 on the Scott Schedule. There is a dispute between the parties as to whether a steel I-beam should have been used in the roof of the dining room. An LVL beam was actually used. The Plaintiff asserts that this was not necessary, and notes that the issue of the steel I-beam was not mentioned in the list of deficiencies that the Defendants e-mailed to the Plaintiff on July 19^th, 2013.

[86] Mr. Evans testified that he discussed the matter of the LVL beam with the Lebeznicks, but that it might have been after the LVL beam was installed. He could not recall the precise timing of the conversation, but confirmed that he had an agreement with the Lebeznicks that they could install this beam instead of the steel one.

[87] Mr. Dawley, the Plaintiff’s expert, testified that the LVL beam, given its size, would require a support post, or the LVL beam would not be in compliance with the Code. Further, that support post would have to be installed in the centre quarter of the beam. I took this to mean that the support would generally have to be installed near the middle of the beam, which means that it would generally be in the middle of the room.

[88] Ms. Lebeznick testified that there were three problems with this wooden support post. First, the fact that it was near the wood burning stove made it a fire hazard. Second, it interfered with the traffic flow through the house. Third, it interfered with her view, specifically her ability to work in the kitchen and see the deer that were walking past the house.

[89] First, I reject the assertion that I should not consider this issue because it was not on the list of problems that the Defendants provided to Mr. Evans in July of 2013. It must be remembered that the Defendants are not professionals and not experienced in the building industry. In addition, there was no requirement for the Defendants to identify all of the deficiencies at this stage. Finally, Ms. Lebeznick testified that, up until mid-July, they had been told that this beam was temporary. As a result, it is not unexpected that this issue would not appear on the list of deficiencies.

[90] More generally, I reject Mr. Evans’s evidence that he had an agreement with the Lebeznicks to either use this product, or to add an additional support in the kitchen. This was a significant deviation from the contract, and the Defendants did not agree to it.

[91] I note that Mr. Evans testified that the LVL beam that was used in this project was used partly because it was easier to use LVL beams rather than steel I-beams. Mr. Evans also acknowledged that, because this LVL beam only had two plys that it would require a third support. In other words, a support pillar was required underneath the beam. A different, larger beam would not have required a support pillar.

[92] I find as a fact that the beam that was used was chosen unilaterally by the Plaintiff. I further find that it was selected because it was easier, cheaper and more efficient for the Plaintiff to use this beam in constructing the house.

[93] In addition, as set out above, this pillar has a significant adverse effect on the property. In my view, this is a necessary repair as it affects the enjoyment of the property. A dining room without a pillar at some point in it is very different than a dining room with a pillar in the middle of it. Mr. Evans testified that the pillar could have been incorporated into the cabinets. I reject this assertion based on Ms. Lebeznick’s evidence as set out above.

[94] I have reviewed this evidence in part because the Plaintiff did not admit that this repair is necessary. I am of the view that it is necessary, and that the original installation of the LVL beam was a breach of contract. I also view it as a further example of the Plaintiff’s approach to this contract.

[95] This brings me to the damages for this issue. The Defendants are claiming $8,147.36 for this repair, and for the work done to remedy the alleged deficiency in the loft floor framing (Item #4). The Plaintiff asserts that the cost should be no more than $2,000.00. In support of its position, the Plaintiff points to the evidence of Donald Tedford and Nelson Dawley, as well as a quote that the Defendants received from Gibbons Carpentry.

[96] As I will discuss below, I have concluded that the best evidence of the cost of a repair is generally the actual cost rather than a quotation. The replacement of this beam is a good example as to why I reached this conclusion. The contractor who conducted the repair, Mr. Andrade, outlined the steps that he took to replace the beam. In cross-examination, Mr. Andrade was not seriously challenged on his explanation of the work that was done.

[97] This brings me to the work done to remedy the loft floor framing, which was item #4 on the Scott Schedule. The Defendants have claimed for this work twice. First, they have claimed $300.00 of work performed by Don Lebeznick to repair this issue. The Plaintiff conceded this repair. Second, they have also claimed $2,500.00 plus HST for this repair as part of an invoice from Decksperts. I agree with the Plaintiff’s submission that there is no evidence to support the claim for this amount and I am not prepared to allow it.

e) Other Deficiencies

[98] In addressing the other deficiencies, I am focusing on the ones where there is a dispute between the parties about both the cost and the necessity of the repairs. Where there is just a dispute about costs, I have resolved that in the next section. Where there are issues relating to the Building Code, I have resolved those in the Building Code section below.

[99] Item #15 on the Scott Schedule concerns the second floor loft railing. This is a contractual issue in my view. When I review the contract, other than the construction stairs issue discussed above, the railings were intended to be construction railings rather than the final railings. As a result, from a contractual point of view, the Plaintiff did not have an obligation to provide this railing.

[100] Item #19 on the Scott Schedule concerns the fact that the floor plywood was not properly glued. In this case, the Plaintiff agrees that the repair was necessary but argues that the extent of the repair completed by Decksperts was not necessary. However, in that regard, I note that Mr. Zegerius testified that it was both the strength and the serviceability of the floor that was a problem. The repair completed by Decksperts addressed both of those issues, while Jesco’s proposed repair only addressed the issue of the strength of the floor. As a result, I accept that the Decksperts repair was necessary.

[101] There is item # 32, which is the treatment of the logs because they had suffered water damage. Mr. Evans testified that there had been quite a bit of rain while the project was ongoing. He also testified that there was some staining on the logs, but that there was not severe water damage.

[102] The Lebeznicks testified that there was severe water damage on the logs, and that they had to have them cleaned by a third-party company. Don Lebeznick also testified that, on a number of visits to the site, he found the logs (and other lumber) out in the open and exposed to the rain without any tarpaulins over it.

[103] On this issue, I am accepting the evidence of the Lebeznicks for a number of reasons. First, Mr. Evans’ own testimony supports the fact that there was at least some discoloration in the logs. Second, I have expressed my concerns that Mr. Evans tended to minimize the nature of the problems in this case, and I find that it is likely that he has also minimized the problems with the logs. Finally, the fact that logs were left out in the open with no protection fits with the way that the Plaintiff conducted this build. As I have described elsewhere, there was a tendency on the part of the Plaintiff to do the minimum amount of work required, or even less than that.

[104] This brings me to the cost of this item. Mr. Evans testified that the cost to do this work would have been less than $1,000.00. There are two problems with this evidence. First, Mr. Evans did not see the state of the logs at the point when they were to be repaired. Second, as I have noted elsewhere, Mr. Evans had a tendency to minimize his company’s responsibility. I am not prepared to accept this estimate.

[105] The Defendants provided a quote from Custom Soda, a local painting company, for $3,785.90. Ultimately, the Defendants did the work themselves, and seek a credit in excess of $4,000.00. In my view, the fact that the Defendants did the work themselves means that it probably took significantly longer than necessary. As a result, I am prepared to grant the Defendants a credit for the amount of the quotation.

[106] As a result, the Defendants will receive a credit for $3,785.90 on account of this repair.

[107] This brings me to the costs of drywall, which was item #34 on the Scott Schedule. The Defendants claim that the costs to remove and reinstall drywall should be paid by the Plaintiff for two reasons. First, much of the drywall was installed in the house prior to July of 2013. Second, many of the deficiencies were not found until the completion of the Tacoma report by Mr. Zegerius in April of 2014.

[108] The Plaintiff asserts that there was very little drywall in the house in the fall of 2013, and that there should not be an allowance for the significant costs to remove and replace drywall. In addition, the Plaintiff points to the invoices that have been tendered, and observes that the bulk of the costs are for the initial installation of the drywall.

[109] I generally agree with the Plaintiff that these costs should not be compensated for two reasons. First, I accept that there was not a lot of drywall in the house when it became clear that repairs behind the drywall were going to be necessary. Second, the complete removal and replacement of all drywall does not appear to be necessary.

[110] However, Mr. Dawley concedes that there would have to be some disturbance in the drywall in his evidence, and I accept this concession.

[111] As a result, in my view, there should be some cost associated with the removal and replacement of drywall. Based on the estimates that I had before me, I am of the view that a cost of $750.00 is appropriate for that item, and I have set that out as a credit in the Scott Schedule.

[112] Finally, there is the issue of the colour match for the windows. This is not an issue that appears on the Scott Schedule. Instead, it appears on the Defendant’s Damages brief. Mr. Lebeznick testified that the cost differential between the white windows that were installed and the colour match windows was $75.00 per window. He also testified that the difference between the steel doors that were installed and the fiberglass doors that the contract envisioned were $400.00 each.

[113] There was no cross-examination of either of the Defendants on this evidence, and the contract clearly states that the Plaintiff is to provide colour matched windows, and fiberglass doors with windows. I accept the Defendants’ evidence on this point, and the Defendants shall be entitled to a credit of $2,325.00 on the cost of the project for these contractual deficiencies.

[114] There was also an issue of a dented front door. The Plaintiff has agreed to replace this door, and is directed to do so within thirty (30) days of the release of this decision, with the arrangements for doing so to be worked out between counsel. If the Plaintiff fails to replace this door, there shall be a further credit for the Defendants in the sum of $400.00.

Issue #3- Costs to Repair

[115] On some of the deficiencies, there is an agreement between the parties that the repair is necessary, but the parties are unable to agree on the cost that should be charged. The disputes arise largely because of the differences between quotations provided by Jesco, a local builder, and the invoice for work actually performed that was presented by Decksperts.

[116] As I have noted above, Mr. Cliff McCartney, the principal of a local building company called Jesco, was called by the Plaintiff to testify in this matter. He prepared two quotations to price out some of the work that needed to be done to repair some of the deficiencies in construction. The first quotation is not relevant as evidence on this case because, inter alia, Mr. McCartney testified that he would not have been prepared to do the work for the price set out in the quote.

[117] The second quotation, which is dated May 14^th, 2015, was prepared after a site visit with Mr. Tedford and Mr. Evans’ son Alec (who is also employed with the Plaintiff), to inspect deficiencies. This quotation deals with a number of the repairs that the Defendants are claiming as set-offs against the amounts still owing on the contract.

[118] In evidence, I was also given the actual cost that Decksperts charged the Plaintiff. I heard evidence from Mr. Luis Andino, who is the father of the owner of Decksperts. Mr. Andino and his crew performed the work, and Mr. Andrino described the steps that they took to do the work, as well as the materials required and the site conditions.

[119] There is one specific issue with the work performed by Decksperts that I will address below. However, in determining damages, I am generally accepting the invoice from Decksperts as the reasonable cost of repair, and rejecting the Jesco quotations.

[120] I do so for four reasons. First, and most importantly, the Jesco quotation is simply an estimate. Estimates will sometimes be higher or lower than the actual cost. The better evidence of what something is going to cost is usually the actual cost, rather than an estimate.

[121] Second, in most cases the work proposed (and completed by) Decksperts to fix the problems appeared to be reasonable. In support of that conclusion, I note that, for some work, the Jesco quote is higher than the actual cost charged by Decksperts. The Plaintiff quite rightly accepts the lower amount as the actual damages. However, the fact that Decksperts was able to do the work for less than Jesco estimated supports the view that Decksperts was generally performing the work in a reasonable manner.

[122] Third, I note that there were two problems with the materials costs in the Jesco quotation. First, a number of Jesco’s quotes did not include the material costs associated with a number of the items that had to be fixed. Second, Mr. McCartney testified that the quote was based on the fact that Brough & Whicher would provide the material. Mr. McCartney noted that he charges a 20% markup on all material. As a result, it is difficult to compare “apples to apples” when assessing the Jesco quote against the work actually performed by Decksperts.

[123] Finally, I note that, with respect to item #18 (the Steel I-Beam), Mr. McCartney wrote in his quotation:

LVL beam across the dining room is compliant with the applied loading with a support column under the span of the beam. This was discussed at the time of installation and the clients agreed to this change since the column would be integral with the design and layout of the kitchen.

[124] It is clear from this passage that Mr. McCartney prepared his quotations with input and guidance from the Plaintiff. It is also clear from Mr. McCartney’s evidence that he has had a relationship with the Plaintiff in the past, and has done some work for them.

[125] As a result, I am of the view that some of the lower costs in the Jesco quote resulted from the information that Mr. McCartney received from the Plaintiff, as well as from the fact that Mr. McCartney and the Plaintiff have a relationship.

[126] In reaching this conclusion, I acknowledge that Mr. Dawley testified on a number of occasions that he believed the Jesco quotation was reasonable. However, it must be remembered that Mr. Dawley did not attend the site and was reviewing the Jesco quotation after the fact.

[127] Given all of these factors, I generally accept the costs associated with the work Decksperts performed in this case. Generally, where there is a dispute over the cost of the repair between the Deckspert costs and the Jesco quote, I have used the Deckspert cost to populate the Scott Schedule.

[128] The one specific issue that needs to be reviewed is Item #22 on the Scott Schedule, which concerns the steel posts in the crawl space. The Plaintiff admits that the repair was required, but challenges the repair carried out by Decksperts. The Plaintiff asserts that the Jesco repair was cheaper, and would have solved the problem.

[129] However, I note that the Jesco repair only results in replacing three posts. There were several more posts in the crawl space, and I accept that all of them needed to be replaced. As a result, I accept the costs set out in the Decksperts invoice.

[130] I should also deal with the issue of the most cost-effective repair. There are a couple of items where the Plaintiff challenges the cost of the repair on the basis that too much time was spent by Mr. Lebeznick in effecting the repair. I am prepared to accept the time that Mr. Lebeznick spent doing the repairs for two reasons. First, he would not have had the specialized tools that would have allowed him to complete the repairs more quickly. Second, the labour rate that he is charging is lower than what a contractor would charge.

Issue #4- Building Code Violations?

[131] In final submissions, counsel for the Defendants argues that items 1 to 16, 18, and 23 to 35 inclusive were all violations of the Building Code. In analyzing the Building Code issues, I have adopted the following approach:

a) I have not made any specific findings on individual items where the parties are agreed on the fact that the repair needs to be completed and on the quantum. Those items are 3, 4, 5, 6, 7, 9, 10, 11, 12, 16, 24, 25, 28 and 29. Whether the remainder of the items violated the Building Code is disputed between the parties.

b) However, I am able to resolve the cost issues without reference to the Building Code, as it is just a matter of cost. In addition, I have resolved a number of issues on the basis of the contract between the parties. In those cases, it is not necessary for me to determine whether any of these matters are violations of the Building Code.

c) I have considered the evidence of the experts as a whole in making some general conclusions about the Building Code issues

d) I have then provided brief conclusions on each of the specific items that are still in dispute between the parties. For clarity, these are items where the contract is silent, and the parties dispute both the need for and quantum of the repair.

a) The Evidence as a Whole

[132] As I have discussed above, there were some issues with the Plaintiff’s quality of work on this project. There was a lack of attention to detail on the part of the builders. Two examples of that lack of attention were:

a) According to the plans, the floor joists in the master bedroom were supposed to be 12 inches from centre to centre. However, the framers put them in 16 inches apart. As Mr. Evans himself noted, “the framers at the time apparently were not paying that much attention that part of the plan when they did that.”

b) The deck roof columns are not supported directly above the deck columns. When the photographs of this deficiency are reviewed, it is quite clear that the workmanship was lacking. It also appears to be the sort of error that should have been caught by the builder during construction.

[133] Mr. Tedford himself acknowledged, in cross-examination, that there were at least a dozen violations of the Building Code when he attended at the property in November of 2013. Mr. Tedford also acknowledged that this would have been a high number of Building Code violations for a building that was nearing completion.

[134] A number of the items where the Plaintiff conceded both the necessity of the repair, and the cost of the repair, were concessions that I view as having been driven, in part, by the fact that the original construction was not entirely in compliance with the Building Code.

[135] As a result, from a general perspective, I conclude that there were a significant number of violations of the Building Code in this construction.

b) Specific Items

[136] Given my general conclusions that there were a significant number of places where the property was below Code, I have not made any specific findings on Building Code violations unless they are necessary to resolve a dispute over a claimed credit.

[137] This leaves four items remaining. I start with Item #2, which is the second story exterior balcony railing, and whether it is structurally adequate. The Plaintiff asserts that the railing that was installed was sufficient, and that nothing further was required. In support of this, the Plaintiff points to the evidence of both Mr. Tedford and Mr. Dawley that the design was based on “satisfactory past practice”, being the railing at Great Wolf Lodge.

[138] Mr. Zegerius testified, however, that the balcony at the Dorcas Bay house failed to adequately perform in a “push test” and that past performance could not be established.

[139] On this issue, I prefer Mr. Zegerius’s testimony because he attended at the site (Mr. Dawley did not) and actually tested the railing. As a result, this item was not in conformance with the Building Code, and the repair is required. The costs of this repair are determined by my conclusions about the actual cost versus the Jesco quotation above.

[140] I have considered the loft floor framing above the master bedroom (Item #4) under the steel beam issue above. This brings me to the loft floor framing above the dining room, which is Item #8. Mr. Tedford and Mr. Dawley stated that this repair was unnecessary, in part because the cantilevered joists were not the main floor joists.

[141] Mr. Zegerius analyzed the provisions of the Building Code, and confirmed that the loft floor framing was not supposed to extend more than two feet out from the support beam. It actually extended three and a half feet and, as a result, needed to be cut back.

[142] I prefer Mr. Zegerius’s evidence for two reasons. First, it is anchored in the specific provisions of the Building Code. Second, the original plans for the house show the cantilever as two feet, which is what Mr. Zegerius said was permitted under the Building Code. The fact that the drawings show a cantilever of two feet suggests that this is all that was permitted by the Building Code. The repair itself is necessary. The cost for this repair is conceded, and will be incorporated into the Scott Schedule.

[143] Item #14 concerns untreated lumber in contact with concrete. Specifically, the issue was that bottom plates of the stripping walls around the perimeter of the crawl space were not constructed with treated wood. The evidence from the Plaintiff was that the repair would not be required if there were at least six inches of concrete below. Mr. Evans testified that there was almost a foot of concrete. However, Mr. Dawley testified that he could not be certain of how much concrete there was. The Plaintiff also asserts that Mr. Zegerius’s testimony was vague and equivocal.

[144] When I review Mr. Zegerius’s testimony, I reject the Plaintiff’s assertion that he was equivocal about this point. Mr. Zegerius testified that there was four inches of concrete under the basement slab, and then there was some gravel. He testified that it was possible for the gravel to become charged with water, and for there to be an issue. As a result, in his words, “there was no reason not to” use treated lumber.

[145] In my view, the repair was required because there was the possibility that the gravel could become charged with water and treated lumber should have been used. The cost of the repair is conceded if the repair is found necessary, and as a result will be included in the adjustments in the Scott Schedule.

[146] Item #27 concerns the use of 2 x 6 beams instead of 2 x 8 beams on the second storey balcony deck. I accept the Plaintiff’s view that this was a de minimis deviation from the plans, and would not provide a credit for it. It is an example of the minor variation that does not affect either structural integrity or the enjoyment of the property.

Issue #5- Other Damages?

[147] In addition to their claims for set-off, the Defendants are advancing a counterclaim for damages associated with the delays in occupancy. The Defendants argue that the delays in their ability to occupy the property were as a result of the failure of the Plaintiff to complete the work that they had contracted for. They also argue that the entirety of the two and a half year delay is the responsibility of the Plaintiff. Finally, the Defendants argue that they could not have completed the repairs until the Plaintiff had done its last inspection of the property, which took place sometime in 2016.

[148] The Plaintiff resists this claim on the basis that there was no completion date in the agreement, the agreement did not contemplate that the Defendants would be able to occupy the residence when the Plaintiff had finished its work, the deficiencies could have been fixed in a matter of a couple of weeks, and the damages claimed are too remote.

[149] First, it is clear that a completion date was discussed between Mr. Evans and the Lebeznicks. Mr. Evans was told that the Lebeznicks would be selling their house in the summer of 2013, and that they would have to be out of it towards the end of August. In addition, the Plaintiff had agreed to perform some extras (such as heating installation) that were not completed by the Plaintiff by July 31^st, 2016.

[150] As a result of these two facts, some measure of damages is foreseeable, and the Plaintiff is responsible for some of the additional costs that the Defendants have claimed.

[151] However, most of the claims that the Defendants have made are both remote and excessive for a number of reasons.

[152] First, the Defendants also had problems with their heating and cooling installation. As noted above, they were involved in litigation with the heating contractor, who operates under the business name of Fast Freddy. In this litigation, the Defendants claim that a significant part of the reason that they could not occupy the property was as a result of deficiencies with this contractors work. As a result, a significant part of the delay in occupying the premises flows from the heating and cooling work allegedly being deficient.

[153] Second, the length of time between the time that the Plaintiff left the work site in July of 2013 and the date the occupancy permits were issued in February of 2016 is in my view excessive, and unexplained. On that point, given the total costs that I have permitted for remedying the deficiencies in this case, I would note that these projects should have been completed within a few weeks after July 31^st, 2013. However, it would likely have taken more than the two weeks that the Plaintiff suggested.

[154] In that regard, I note two pieces of evidence from Ms. Lebeznick that support my conclusion:

a) She testified that everything was on-site for them to complete the work necessary to obtain an occupancy permit, and that it would have been days after July 31^st, 2013 that they could have finished their work if the Plaintiff had done its work properly.

b) Ms. Lebeznick agreed with the estimate that the house could be levelled and rebuilt within three months. While I acknowledge that repairs sometimes take longer than a new construction, the discrepancy is enormous.

[155] Third, some of the costs are excessive and or remote. In this respect, I note two points:

a) With respect to the Dorcas Bay home, I note that there are costs for utilities and insurance. These costs would have had to have been paid regardless of whether the property was occupied or not. As a result, they are not recoverable in this claim.

b) With respect to the costs associated with the second Windsor property, I am of the view that they should not be recovered under this claim because the Windsor property is a separate property. There is no way to measure whether these costs resulted in a capital gain to the Defendants, which would have allowed them to recoup all of these costs.

[156] However, as I have indicated above, some damages are appropriate. In my view, the costs associated with the stays at By the Bay in the fall of 2013, along with some limited recovery for additional expenses associated with food in that time period should be allowed. I reach this conclusion because the project was delayed by the Plaintiff’s failure to complete it properly, and the Defendants can support these direct costs.

[157] On my calculations, this produces damages in the sum of $2,500.00, which I award to the Plaintiffs in this case.

Conclusion and Costs

[158] My conclusions on this matter are as follows:

a) The amount owing under the contract to the Plaintiff, before any deductions is $66,615.98.

b) The Scott Schedule sets out allowable repairs of $31,195.35, which are to be deducted from the amount in paragraph (a).

c) In addition, there is to be a deduction of $2,325.00 for the difference in cost between the steel doors and white windows, and the colour matched windows and fiberglass doors that were contracted for.

d) This produces an amount of $33,095.63, and the Plaintiff’s claim is allowed to that amount.

e) However, the Defendants are entitled to damages on their counterclaim in the sum of $2,500.00. These damages are to be set-off against the Plaintiff’s claim

[159] As a result, I find that the Defendant owes the amount of $30,595.63 to the Plaintiff. The Plaintiff has asked that this amount be paid within thirty (30) days, failing which the Plaintiff will move to sell the Lebeznick’s property. I am not prepared to impose such a draconian term, especially since the issue of costs is still to be adjudicated.

[160] As a result, the Plaintiff is to pay the monies owing within one hundred and twenty (120) days of the final judgment, including costs, being issued and entered in this matter.

[161] This brings me to the subject of costs. Success on this matter has been divided. While the parties have filed correspondence that makes me aware that offers to settle have been made, I am not aware as to what those offers are.

[162] Therefore, the parties are directed to each file their submissions within fourteen (14) days of the date of the release of this decision. Those submissions are to be no more than three (3) single spaced pages exclusive of offers to settle, bills of cost and case-law.

[163] The parties will each have seven (7) calendar days thereafter to file reply submissions on costs. Those reply submissions are not to exceed two (2) single-spaced pages.

[164] If I do not receive costs submissions in accordance with these deadlines, then I will presume that the parties have resolved the issue of costs unless they advise me otherwise.

[165] In addressing the cost issues, the parties should both address the principle of proportionality. The total dispute in this matter was less than $100,000.00. However, the parties retained a significant number of experts and used a considerable amount of Court time for this case. I anticipate that the costs of this case will be at least as much as the value of the claims, which will clearly raise the issue of proportionality.

[166] The original costs submissions are to be filed with the Court office in Owen Sound. A copy of those submissions is to be provided to my judicial assistant, Sara Stafford by e-mail (sara.stafford@ontario.ca).

LEMAY J

Released: January 27, 2017

Court File No. 13-187

SCHEDULE “A”

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Lien Act, R.S.O. 1990, c. C.30

B E T W E E N:

BROUGH AND WHICHER LIMITED

Plaintiff

and

DONALD LEBEZNICK and LYNN LEBEZNICK

Defendants

SCOTT SCHEDULE

Scott Schedule: 875 Dorcas Bay Road

Item No.

Defendants (Plaintiffs by Counterclaim) – The Lebeznicks

Plaintiff (Defendant by Counterclaim) – Brough & Whicher

JUDGE

Issue/ Defect

Term of Contract/

Specified Breach

Remedial Work Done or Required

Cost of Remedial Work

(labour and materials, approximate)

Comments on Breach

Comments on Remedial Work

Comments on Costs

Comments

Price

Roof Rafters not adequately anchored at the base

Building Code Violation/

Breach of Implied Warranty/

Duty

COMMENTS:

Agreed Deficiency by Tacoma Report, Donald Tedford testimony, and Nelson Dawley Report.

Two Simpson clips have been added at the base of each rafter.

COMMENTS: Donald Lebeznick had to pull back vapour barrier, pull out insulation, and all was done by hand.

30 hours of Donald labour = $900

$121.42 materials

TOTAL = $1021.42

Reference for Materials: Exhibit 6, Tab 25, Page 10 - middle and right receipt

COMMENTS:

Price difference from Jesco reflects doing it by hand versus with air nailer as stated by Cliff McCartney.

Plaintiff admits that repair required and only issue is determining reasonable cost of repair

One Simpson clip per rafter would have been sufficient (as per Jerry Zegerius).

Material cost of $121.42 is twice what was required (i.e. should be $60.71). Plaintiff submits that $350.00 in labour quoted by Jesco to perform this work more than sufficient. Reference –Exhibit 3, Tab 5, page 96 (“Second Jesco Quote”).

Determined on the basis of my conclusions on the issue of the reasonable cost of repairs.

$1,021.42

Second storey exterior balcony railing is not structurally adequate

Building Code Violation/ Breach of Implied Warranty/

Duty

COMMENTS: Testimony of Gerry Zegerius and the Tacoma Report was that the balcony failed adequate performance “push test” so no past performance could be established.

Nelson Dawley testimony stated he did not attend the site and without attending the site, Nelson Dawley could not establish past performance.

No evidence was provided to Nelson Dawley or Donald Teford of adequate past performance for a Brough and Whicher balcony.

No evidence was called or provided by Brough and Whicher of any adequate past performance

Nelson Dawley did not testify with respect to Great Wolf Lodge balcony nor was he asked about it.

Installed new posts, anchored through decking to the framing below. Provide a new guard constructed in conformance with SB-7.

COMMENTS:

Mr. Lebeznick had to dismantle the entire railing, build two partial walls on each end of roof, build new railing, added screws to every picket.

40 hours of Donald labour =

$1200.00 +

$196.13 materials

TOTAL = $1396.13

Reference for Materials: Exhibit 6, Tab 25, Page 9, left and right receipt;

and

Page 10 left receipt

COMMENTS: Nelson Dawley agreed $1396.13 is a reasonable cost for replacement of entire railing.

Gerry Zegerius stated Jesco fix is not adequate and the fix completed sufficiently satisfies Mr. Zegerius’ concerns.

Meets Code and not a structural deficiency

Not required as per Donald Tedford (i.e. “satisfactory past practice”) and Nelson Dawley, both of whom testified that the balcony construction was similar to Great Wolf Lodge. Mr. Dawley testified that repair proposed by Jesco would satisfy any structural concerns.

$150.00

Reference: Second Jesco quote

Repair was required. There was no ability on Mr. Dawley’s part to assess the past practice as he did not actually see the railing, and Mr. Zegerius provided clear and cogent testimony on why this repair was necessary.

Cost is resolved on the basis of my findings on the actual cost vs. Jesco quote issue.

$1,396.13

Splicing of continuous built-up wood beams is not structurally adequate

Building Code Violation/

Breach of Implied Warranty/

Duty

Deck beams have been reinforced with an additional ply fastened to the outside of the existing beams.

30 hours of Donald labour = $900.00

TOTAL = $900.00

No admission as to whether repair required but credit for cost of claimed repair conceded by Plaintiff.

$900.00

Loft floor framing above master bedroom not structurally adequate

Building Code Violation/

Breach of Implied Warranty/

Duty

COMMENTS: See #18

Existing 2X10 joists were doubled up

COMMENTS: See #18

10 hours of Donald labour = $300.00

TOTAL = $300.00

COMMENTS: See #18

Mr. Tedford stated $300 is too low.

No admission as to whether repair required but credit for cost of claimed repair conceded by Plaintiff.

$300.00

Floor joists are not nailed to bearing walls or beams

Building Code Violation/

Breach of Implied Warranty/

Duty

Nails from main floor joists to the foundation sill plate and from second floor joists to the beam and walls were noted throughout the house.

6 hours of Donald labour = $180.00 + $27.32 materials

TOTAL = $207.32

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff.

$207.32

Exterior deck joists are not nailed to bearing walls or beams.

Building Code Violation/

Breach of Implied Warranty/

Duty

Two toe-nails from each joist to the plate or wood beam have been added.

1.5 hours of Donald labour = $45.00 + $27.32 materials

TOTAL = $72.32

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff.

$72.32

Interior load-

bearing lintels are not nailed to king studs.

Building Code Violation/

Breach of Implied Warranty/

Duty

Two toe nails from each ply of each lintel to the adjacent king stud at every load bearing lintel location have been added.

2 hours of Donald labour = $60.00 + 27.32 materials

TOTAL = $87.32

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff.

$87.32

Loft Floor Framing above the dining room is not structurally adequate

Building Code Violation/

Breach of Implied Warranty/

Duty

COMMENTS: Reference Tacoma Report and Gerry Zegerius testimony said the specific Building Code clause is the only reference to cantilevers and the max length of a cantilever is 2 feet. No engineering analysis was provided by Brough and Whicher therefore the builder should ensure the cantilever was in conformance with the building code.

Loft floor framing has been cut back to an extension of 21” past the edge of the beam.

COMMENTS: Testimony of Luis Adino stated the floor was bouncy. Had to remove the plywood, cut the joist, replace the fascia with double 2x10 and put new plywood on. Materials included joist hangers for cupping, new plywood.

Decksperts - $700.00 + $102.25 materials

$169.75 materials (paid by the Lebeznicks)

TOTAL = $1063.00

Reference: Exhibit 6, Tab 23, Page 1&3 Decksperts Invoice

COMMENTS: Cliff McCartney testimony stated $1063.00 is reasonable for the work described.

Allegation of structural inadequacy denied by Plaintiff

Donald Tedford and Nelson Dawley concurred that this repair (consisting of cutting back the overhang on the cantilevered portion of the loft floor) was unnecessary.

Cost of repair conceded if Court finds that repair was required.

For reasons set out in the decision, the repair was required.

$1,063.00

Washers not installed at the anchor bolts at top of the foundation wall.

Building Code Violation/

Breach of Implied Warranty/

Duty

Galvanized washers have been added at each anchor bolt location.

3 hours of Donald labour = $90.00 + 27.32 materials

TOTAL =$117.32

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff.

$117.32

Fastening of board and batten cladding not in conform-

ance with code

Building Code Violation/

Breach of Implied Warranty/

Duty

Pairs of 2 ¾” spiral galvanized finishing hand nails have been installed directly into the exterior strapping.

6 hours of Donald labour = $180.00

TOTAL = $180.00

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff

$180.00

Exterior front stairs are not in conform-

ance with code requirement

Building Code Violation/

Breach of Implied Warranty/

Duty

Remove and replace front stairs with newly constructed stairs.

Gibbons Quote Exhibit #5 Tab #14

TOTAL = $400

Price disputed but claim conceded by Plaintiff as not worth arguing over

$400.00

Bridging is not nailed in conform-

ance with building code requirement

Building Code Violation/

Breach of Implied Warranty/

Duty

Provided additional solid blocking at ends of bridging rows where joist spacing does not permit installation of bridging to end of joist run.

$120.00 – Labour Donald + 27.32 materials

TOTAL = $147.32

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff

$147.32

Bearing of beams in beam pockets is not adequate

Building Code Violation/

Breach of Implied Warranty/

Duty

Non-shrink grout has been installed in the beam pockets at each end of the foundation.

COMMENTS: Testimony of Luis Andino was that Decksperts had to support the beam at each end to remove the block and pack it with non-shrink grout. Mr. Andino stated it took a day and a half with 2 men completing the work.

Work done complied with the Tacoma Report and Mr. Zegerius stated during examination that non-shrink grout products is the most common method used for this situation.

Decksperts - $600.00 + $211.67 materials (contractor)

$133.00 materials (paid by the Lebeznicks)

TOTAL = $1022.67

Reference: Exhibit 6, Tab 23, Page 1&3 Decksperts Invoice

COMMENTS: Work completed by Decksperts and paid for by the Lebeznicks.

Plaintiff admits that repair required and only issue is determining reasonable cost of repair

Material cost of $344.67 conceded. Labour cost disputed – this work could have been performed for

$200.00 in labour.

Reference: Second Jesco quote

This issue is resolved based on my findings regarding the actual cost vs. the Jesco quote issue.

$1,022.67

Untreated lumber in contact with concrete.

Building Code Violation/

Breach of Implied Warranty/

Duty

COMMENTS:

Testimony of Gerry Zegerius stated that the Ontario Building Code does not specifically define ground. The intent of the clause is to protect wood from excessive moisture.

Mr. Dawley’s position that the repair was not required was based on an admitted assumption that Brough & Whicher followed the drawings of the house. Mr. Dawley did not attend the site and neither Mr. Tedford, nor Mr. Dawley provided physical evidence there was 6” of airspace between the gravel and the lumber.

Poly has been installed below the newly installed bottom plates.

COMMENTS:

Mr. Lebeznick

went into the crawlspace, went to pull the walls out and the walls basically came down without too much force because they had not been constructed properly.

There was only a couple nails put in the wall and the wall was only toe nailed to the top plate of the floor joist above (holding the wall in place).

Mr. Lebeznick had to take out studding which was only 24-inch on centre and put to 16-inch on centre which was required by the plans. Then Mr. Lebeznick put poly underneath the walls and reinstalled them.

24 hours of Donald labour = $720.00 + 165.75 materials

TOTAL = 885.75

Not a breach – meets Code and complies with drawings

Repair not required – as per testimony of Donald Tedford and Nelson Dawley. The testimony of Jerry Zegerius on the necessity of this repair was equivocal.

Cost of repair conceded if Court finds that repair was required.

For reasons given in my decision, repair required

$885.76

Second floor loft railing is not structurally adequate.

Structural Inadequacy/

Breach of Contract Schedule A (construction stairs)/ Breach of Implied Warranty/

Duty

COMMENTS: Testimony of Gerry Zegerius – drawings indicated a railing would be provided and the guardrail did not meet the intent of the drawings or the building code.

Testimony of Mr. Dawley was that he agreed with the Tacoma report and stated the railing was not satisfactory to be used during construction.

There was no evidence called by Brough and Whicher about the location of the railing pictured at Exhibit 3, Tab 2, page 65. There was no evidence this was the same railing.

Ms. Lebeznick provided evidence that the railing pictured at Exhibit 3, Tab 2, page 65 was in fact a different railing than the railing listed in the Tacoma Report.

Installed a half wall and removed railing.

15 hours of Donald labour = $450.00

TOTAL = $450.00

COMMENTS: Mr. Tedford said the cost to switch to a final barrier is between $100.00 and $4,000.00 and said $400.00 would be reasonable depending on the home owner’s choice.

Contract to supply construction railing was complied with. Never intended to provide railing for occupancy.

The Lebeznicks built a half wall to remedy alleged insufficient construction railing. Reference testimony of Jerry Zegerius who agreed that railing pictured at Exhibit 3, Tab 2, page 65 was sufficient.

If repair required, it would have required no more than a half hour of labour and the application of a few screws.

A final railing was not contracted for. As a result, this repair is not necessary.

$0

Guardrails at exterior entrance stair not adequately anchored

Structural Inadequacy/

Breach of Contract Schedule A (exterior railing porch and stairs)/

Breach of Implied Warranty/

Duty

Guardrails anchored properly.

3 hours of Donald labour = $90.00

TOTAL = $90.00

Conceded by Plaintiff

$90.00

Fastening of second story balcony deck framing not structurally adequate

Structural Inadequacy/

Breach of Contract Schedule A (exterior railing porch and stairs)/

Breach of Implied Warranty/

Duty

Installation of additional fasteners to support the rim board is complete. Additional 4” lag screws have been installed at 16” on centre, staggered.

5 hours of Donald labour = $150.00 +

$150.00 materials

TOTAL = $300.00

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff

$300.00

Beam installed across the dining room not structurally adequate

Structural Inadequacy/

Breach of Contract – Schedule A (Steel Beam) and Deviation from the Plans/

Breach of Implied Warranty/

Duty

COMMENTS: Tacoma Report stated a steel beam was used in the drawings. No blocking was used underneath the column. Testimony of Gerry Zegerius was that the column installed to support the LVL beam was temporary and not adequate to span the required distance.

Testimony of Mr. Dawley was that he agreed with Tacoma’s Report and that the LVL was undersized and inadequate.

Also noted in the Lebeznick’s email dated July 19, 2013, Mrs. Lebeznick stated she may have missed listing some deficiencies.

Reference: Exhibit 5, Tab 5, pages 51-52.

New W8X28 steel beam is installed complete with solid blocking at each end of the beam.

(#4) Floor above Den and bedroom 2 was reinforced at the same time.

COMMENTS:

Testimony of Luis Andino was that Decksperts had to remove LVL and replace with steel beam. This process took a couple of days with 4 men because the beam had to be prepared and they had to drill the top flange into the solid lumber to toenail the joist from the top.

Then Decksperts had to pack the sides ready for finish. This required 8 men to carry the beam and help install it. Decksperts had to replace the posts on either side of the beam because they were not nailed properly. Decksperts had to support both ends of the floor with jacks in order to remove the LVL beam.

With respect to #4 the floor was bouncy so Decksperts removed all drywall and sistered all the joists. They did solid blocking in meter span from the exterior wall to the wall that was in bathroom. None of ends of joists were nailed properly so Decksperts had to add extra lumber and 2x10 to existing joists and add in glue where there was contact with plywood and re-screw all plywood from top.

Also they had to add extra blocking because there were no blocks to carry out the logs from above. This required two guys and took a day and a half.

Decksperts invoice - $2300.00 (for #18)

$2500.00 (for #4) +

$313.92 materials

(contractor)

20 hours Donald labour = $600.00 +

$1809.44 materials (paid by the Lebeznicks)

TOTAL = $8147.36

Reference: Exhibit 6, Tab 23, Page 1 & 2 & 3

and

Exhibit 6, Tab 26, page 14 and 16

COMMENTS:

Testimony of Mr. Dawley was that $2300.00 was reasonable to replace the LVL beam with a steel beam.

Mr. Dawley further stated that the $2500.00 allocated as part of this repair was work associated with the fix of deficiency #4.

The Gibbons quote was from 2013, 2 years earlier and did not include materials. This was provided before the Tacoma Report was completed and before the extent of the required work was known.

The invoice for the Beam itself is listed at Exhibit 6 Tab 26 page 16 along with other materials listed on page 14.

No admission as to whether repair required but credit for cost of claimed repair conceded by Plaintiff. In particular, the Court is asked to note that this deviation is not mentioned in the Lebeznick’s July 19, 2013 email listing their outstanding concerns. Reference: Exhibit 5, tab 5, pages 51-52

Donald Tedford and Nelson Dawley both testified that this repair should cost no more than $2,000 (including materials). The Lebeznicks obtained a quote from Gibbons Carpentry on Sept. 9, 2013 for

$1,000.00 in labour for this repair.

Reference: Exhibit 5, Tab 15. The cost of the steel beam was either $560 or $750 plus HST (see invoices at Exhibit 6, Tab 26, pages 14-16). It is unclear as to how the Lebeznicks have arrived at the amount claimed for materials.

No evidence was presented by the Lebeznicks to suggest that the $2,500 allocated under this repair related to the work to correct deficiency #4 above.

For reasons set out in my decision, most of the costs are permitted. The costs for fixing #4 are excluded.

$5,322.66

Floor plywood has not been glued

Structural Inadequacy/

Breach of Contract Deviation from the plans/

Breach of Implied Warranty/

Duty

COMMENTS: Mr. Tedford, Mr. Dawley and Mr. Zegerius were all in agreement that this did not comply with the drawings and required remediation because of structural inadequacy.

Tacoma Report stated either new flooring or re-screw existing flooring and reinforce existing joists.

Additional loadbearing walls have been installed at the midpoints of the joist spans to either side of the central beam. The additional reinforcing has reduced the span of the installed joists, and as a result, gluing of floor plywood not required.

COMMENTS:

Testimony of Mr. Zegerius is the remediation listed above addresses the stability issue.

Testimony of Luis Andino stated that in addition to the remediation listed above, Decksperts re-screwed the ground floor and upstairs floor.

The screwing of the floor satisfied Mr. Zegerius’ concern about the serviceability of the floor.

Evidence of Mr. Zegerius was that the second Jesco quote did not satisfy the deficiency listed.

Decksperts - $2100.00

TOTAL = $2373.00

Reference: Exhibit 6, Tab 23, Page 2&3 Decksperts Invoice

COMMENTS: Evidence of Mr. Dawley was that $2,300.00 was a reasonable cost for the remediation listed and is less costly than removal of the floors.

Decksperts completed this remediation and was paid in full by the Lebeznicks.

Plaintiff admits that repair required and only issue is determining reasonable cost and method of repair.

Evidence of Donald Tedford and Nelson Dawley to the extent that repair proposed in Second Jesco Quote was sufficient. Although Jerry Zegerius testified that he was satisfied with the repair method chosen by DeckSperts and Mr. Lebeznick, the repair carried out was not the repair recommended by Mr. Zegerius.

$150.00

Reference: Second Jesco quote

In this case the issue is the method of repair. I accept Mr. Zegerius’s evidence that the point behind the repair was both the strength and the serviceability of the floor. As a result, I find that the method used by the Lebeznicks was reasonable.

$2,373.00

Basement windows are provided with single 2x10 lintels across the opening

Structural Inadequacy/

Breach of Contract Deviation from Plans/ Breach of Implied Warranty/

Duty

Provided a double 2X10 lintel across each opening, complete with 3” of bearing at each end. Provided Simpson joist hangers at all flush joist locations.

10 hours of Donald labour = $300.00

TOTAL = $300.00

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff

$300.00

Fastening of main storey deck rim boards is not adequate

Structural Inadequacy/

Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

Installation of additional fasteners to support the rim board is complete. Additional 4” lag screws have been installed at 16” on centre, staggered.

5 hours of Donald labour = $150.00 + $150.00 materials

TOTAL = $300.00

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff

$300.00

Steel posts in the crawlspace not installed as shown on the drawings

Structural Inadequacy/ Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

COMMENTS: Reference Tacoma Report stated that this was not in compliance with drawings.

Evidence of Mr. Dawley and Mr. Zegerius is the deficiency was required to be remediated.

JP Posts have been replaced with 6x6 pressure-treated wood posts along the main beam line, and with 5 ¼”x7” PSL posts directly below the bearing points of the W8x28 steel beam.

COMMENTS:

Evidence by Mr. Andino was that the pressure treated wood was wrapped in a fireproof membrane called blue skin and was bolted to the concrete.

Galvanized straps and Simpson ties on each side of the posts and at the bottom of the beams were also added. This work required 2 men and took approximately 1 day to complete.

Testimony of Mr. Zegerius was that he did not agree the fix proposed in the second Jesco quote would remediate the deficiency because it only addressed fixing 3 posts.

Evidence by Mr. Lebeznick, Mrs. Lebeznick and Luis Andino was that the Superposts were unavailable at the time.

Evidence of Mr. Andino and Mr. Zegerius was that Mr. Zegerius approved the remediation listed for this deficiency before the remediation occurred.

Decksperts - $1050.00 + $102.25 materials (contractor) + $169.75 materials (paid by the Lebeznicks)

TOTAL = $1458.50

Reference: Exhibit 6, Tab 23, Page 2&3 Decksperts Invoice

COMMENTS:

Evidence of Mr. Dawley and Mr. McCartney was that the difference in price from the second Jesco quote was due to the extra posts replaced.

Plaintiff admits that repair required and only issue is determining reasonable cost of repair

Evidence of Donald Tedford and Nelson Dawley that repair proposed in Second Jesco Quote was sufficient. The repair carried out differed from that originally recommended by Jerry Zegerius.

Material cost of $272.00 conceded.

Labour cost $350.00

Reference: Second Jesco quote

As per written reasons.

$1,458.50

Concrete footings are eccentric-

ally loaded

Structural Inadequacy/

Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

COMMENTS: Reference Tacoma Report. Evidence of Mr. Zegerius, and Mr. Dawley was that the footing required replacement unless it was directly on bedrock.

Mr. Zegerius did not further investigate to determine if all other footings were on bedrock, nor did he see bedrock.

Neither Mr. Dawley nor Mr. Tedford performed any investigation to determine if the footings were on bedrock.

Removed posts and installed two 10” SonoTubes anchored to bed rock.

COMMENTS:

Evidence of Mr. Andino was that the footings were sitting on sand and not bedrock when he dug them up.

He had to dig 12 inches deeper to find the bedrock.

Mr. Andino had to support the building with temporary posts while removing the old post to find bedrock. Decksperts also put in sonotubes in concrete and steel saddles and then applied non-shrink grout on the bottom of the steel saddle.

Decksperts also installed 3 extra sonotubes because one beam was a load bearing beam and this was required.

Decksperts - $3870.00

211.67 materials (contractor)

$133.00 materials (paid by Lebeznicks)

TOTAL = $4717.77

Reference: Exhibit 6, Tab 23, Page 2&3 (reference for 23A) Decksperts Invoice

COMMENTS: Evidence by Mr. Andino was that this work took 3 guys for 4 days due to mixing concrete by hand, digging for bedrock and drilling.

Repair unnecessary.

Report of Jerry Zegerius (Reference: Exhibit 3, Tab 1, page 27) only recommended checking the footings. However, the footings were constructed on exposed bedrock (Reference: Exhibit 5, Tab 8, page 110). Testimony of Donald Tedford and Nelson Dawley to the effect that no work in this regard was required. Jerry Zegerius was equivocal on this point.

No comment on cost of repair because it is respectfully submitted that no evidence was presented to support a finding that this repair work was required.

The evidence established that there were problems with at least some of the footings. Once the problems were established, then the cost of the repair is reasonable.

$4,717.77

Concrete footings appear to be undermined.

Structural Inadequacy/

Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

New concrete piers and footings have been installed where noted.

18 hours of Donald labour = $540.00 +

$147.15 Materials

TOTAL = $687.15

No admission as to whether repair required but credit for cost of repair conceded by Plaintiff

$687.15

Deck roof columns are not supported directly above deck columns

Structural Inadequacy/ Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

One additional concrete pier and footing was added at the outside corner where it was not feasible to install the additional framing.

Decksperts - $1615.00 + $102.25 materials

(contractor) +

$169.75 materials (paid by the Lebeznicks)

TOTAL = $2096.95

Reference: Exhibit 6, Tab 23, Page 2&3 Decksperts Invoice

Plaintiff admits that repair required and agrees with credit claimed.

2,096.95

Steel teleposts are not adequately anchored to the crawlspace floor slab

Structural Inadequacy/

Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

Posts have been replaced with 6x6 pressure-treated wood posts along the main beam line, and with 5 ¼”x7” PSL posts directly below the bearing points of the W8x28 steel beam.

Done in conjunction with #22

The previous reference here was an error.

No additional cost (over and above that shown in item #22) is claimed for this expense.

Plaintiff admits that repair required and only issue is determining reasonable cost of repair.

$75.00

Second Jesco quote

No additional costs allowed for this item- all costs allowed for item #22

$0

Second storey balcony deck framing is not as shown on drawings

Deviation from the Plan/ Breach of Contract Deviation from Plans/

Breach of Implied Warranty/

Duty

COMMENTS: Reference Tacoma Report stated that this was a deviation from the drawings.

Additional 2x8 joists will be required where SB-7 guidelines are followed

COMMENTS:

No evidence was provided by Brough and Whicher that the deviation from the plans was approved by the Lebeznicks. Evidence by Brough and Whicher was that no discount to the contract price was provided due to this deviation.

Done in conjunction with #2

Not a breach - meets Code. Drawings specified 2X8 and contractor used 2X6. De minimis deviation. No evidence that deviation in any way provided inferior product to owner.

Accept position of the Plaintiff on this issue.

$0

Deck posts have not been provided with a concrete sonotube pier

Breach of Contract Schedule A/

Deviation from the Plan/

Breach of Implied Warranty/

Duty

Replace and install 10” diameter concrete sonotube piers at all locations shown on plans (18 total).

Done in conjunction with #23, not #25.

COMMENTS: Only 4 of the 19 sonotubes listed in the drawings were replaced by Decksperts. Evidence of Brough and Whicher was that the non-use of the sonotubes was not approved by the Lebeznicks before or after they were installed and no discount was provided to the Lebeznicks due to the deviation from the plans.

Included with price for #25

No dispute because credit for claimed cost of #25 has been conceded.

Evidence shows that this was done in conjunction with #23, and not #25. Costs permitted under 23, and no additional costs to be permitted here.

$0

The sill plate has been installed with standard untreated lumber.

Breach of Contract Deviation from the Plan/

Breach of Implied Warranty/

Duty

Remove the existing sill plate and replace with material shown on the drawing.

Done in conjunction with #7

Agreed – no determination required on this item.

Deck is nailed with non-treated fasteners.

Breach of Contract Deviation from the Plan/

Breach of Implied Warranty/

Duty

Remove all untreated nails and replace with hot-dip galvanized or stainless steel fasteners.

13 Hours of Donald labour = $390.00 + $165.75 materials

TOTAL = $555.75

Contractor admits that repair required and credit for cost of repair claimed conceded by Plaintiff

$555.75

Generally sub-

standard workman-

ship on second

storey balcony guard.

Breach of Contract Deviation from the Plan/

Breach of Implied Warranty/

Duty

COMMENTS: Evidence of Mr. Zegerius was that he would not be satisfied with this work on his own property. In reference to the balcony guard, the guard rail was out of line, several pickets were notched at the wrong length, additional holes were drilled in the bottom rails where the pickets were not put in. The top and bottom rail was not fastened to the centre line of the post. Remediation was to remove the guard and reinstall.

Done in conjunction with #2

Contractor denies that its workmanship was in any way substandard

No additional costs associated with this item. The decision addresses the issues of workmanship.

Logs inside and outside have severe water damage

Breach of Contract/

Breach of Implied Warranty/

Duty

COMMENTS:

Evidence of Mr. and Mrs. Lebeznick was the damage caused to the inside and outside of the logs was as a result of a failure to take the necessary precautions to ensure the wood was tarped properly during harmful weather conditions, and due to Brough and Whicher not installing the roof in a timely manner.

Pressure wash logs, hand sand to remove water stains and prep logs inside and outside

Prep Logs (exterior) 82 hours of Donald labour = $2460.00

$154.12 materials

Sanding 59 hours of Donald labour = $1770.00

TOTAL = $4384.12

Reference: Exhibit 6, Tab 25, Page 7. All receipts except bottom right corner;

and,

Exhibit 5, Tab 13, Soda Pop letter

Not required under contract

Plaintiff relies on the evidence of Rupert Evans in the event that it the Court finds that this is a deficiency.

$1,000.00

The quotation for this work that was obtained from the third party is less than it cost the Lebeznicks. On this item, it was more reasonable to have used the third party’s services.

$3,875.90

Venting

Breach of Contract/

Breach of Implied Warranty/

Duty

COMMENTS:

Mr. Lebeznicks evidence was that there was mold on the porch ceilings due to lack of vents installed and no air circulation.

Mr. Lebeznick installed new vents into the soffit to prevent further molding and washed the area with a solution.

2.5 Hours of Donald labour = $75.00 + $222.09 materials

TOTAL = $297.09

Reference: Exhibit 6, Tab 25 Page 7. Bottom right receipt;

and

Page 11

and

Page 17

Not required under contract

Rupert Evans testified that tis work could be performed by a skilled labourer in a half hour with less than $20 of materials.

$100.00

I accept the Defendants’ position on this issue because of my findings on the most cost-effective repair issue.

$297.09

Drywall Removal to carry out above deficiencies

Breach of Contract/

Breach of Implied Warranty/

Duty

Removed and installed new drywall as required to gain access to and remediate deficiencies.

COMMENTS:

Photos taken by Mr. Tedford and Mr. Zegerius are from specific points in the house. There is no evidence that there was very little drywall installed in the entire house.

Evidence of Mr. Lebeznick was the most of the drywall was installed prior to July 2013 and that it had to be removed due to all the deficiencies. Many of the deficiencies were not exposed to the Lebeznicks prior to installing the drywall. It was only after the Tacoma Report and the work by Decksperts that the extent of the deficiencies brought to light.

Drywall Screw Removal – 18 hours Donald labour = $540.00

Drywall removal 15 hours Donald labour = $450.00

Re-insulating and taping – 27 hours Donald labour = $810.00

Materials = $3314.68

TOTAL = $5114.68

Reference: Exhibit 6, Tab 25, Page 12

and

Exhibit 6, Tab 26, Page 13 and 14

COMMENTS:

The invoice Referenced at Exhibit 6, tab 26, page 12 shows the amount paid by the Lebeznicks for the drywall materials. It was this drywall that had to be destroyed, removed, and replaced.

Contractor denies liability for this alleged expense. Lebeznicks were aware of alleged deficiencies and were reckless in proceeding to drywall areas which they knew, or ought to have known, might reasonably require remediation.

Defendant’s claim grossly excessive in circumstances where an entire house could be drywalled for the amount being sought. Moreover, photographs taken by Donald Tedford and Jerry Zegerius in the fall of 2013 show that very little drywall repair was required.

The drywall materials invoice contained at Exhibit 6, tab 26, page 12 ($2,546.35) clearly relates to drywall purchased at first instance and not for repairs. No other invoices produced appear to relate to the difference in material cost claimed (i.e. $768.33)

As per my reasons, some costs are appropriate, but not what is sought by the Defendants

$750.00

Interior Stairs do not meet required size

Building Code Violation/

Breach of Contract term Schedule “A” under Window and Doors

Breach of Contract/

Breach of Implied Warranty/

Duty

Stairs enlarged from 29” to 34” as required.

COMMENTS:

Exhibit 6, Tab 32, Page, 41 References a letter from Wendy Elliott, Chief Building Inspector. Ms. Elliott stated that the construction stairs are still to comply with the code and did not meet the requirements.

9 hours labour by Donald = $270.00

TOTAL - $270.00

COMMENTS: Evidence of Mr. Lebeznick was that he had to widen the stairs, hat to install railings and a landing.

Contract to supply construction stairs was complied with. Never intended to provide stairs suitable for permanent occupancy.

Repair cost will not be disputed if Court finds that this was a deficiency

This was a deficiency for the reasons set out in my decision. Credit to issue

$270.00

TOTALS

PLAINTIFF TOTAL: $39,214.29

DEFENDANT TOTAL: $10,543.83

JUDGE TOTAL: $31,195.35

CITATION: Brough v. Lebeznick, 2017 ONSC 678

COURT FILE NO.: 13-187

DATE: 2017 01 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brough and Whicher Limited

Plaintiff

• and -

Donald Lebeznick and Lynn Lebeznick

Defendants

REASONS FOR JUDGMENT

LEMAY J

Released: January 27, 2017