Court File and Parties

Newmarket Court File No.: CV-08-92398 Date: 2018-07-16 Ontario Superior Court of Justice

Between: Jennifer Faber, Plaintiff – and – First View Properties Inc., Defendant

Counsel: Roger A. Gosbee, for the Plaintiff Flavio J. Battiston, for the Defendant

Heard: May 29, 30, 31, June 1 and 25, 2018

Reasons for Decision

MULLIGAN J.

[1] The Plaintiff, Jennifer Faber (Ms. Faber), brings a claim against the Defendant, First View Properties Inc. (First View), for breach of contract with respect to brickwork on a new home which she purchased from First View in August of 2005. On closing, Ms. Faber obtained a certificate indicating that the home was enrolled in Tarion’s New Home Warranty Program. First View denies Ms. Faber’s claim for faulty or defective workmanship with respect to the brickwork on this residential dwelling.

[2] Ms. Faber availed herself of certain proceedings under the provisions of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31. Those proceedings included an appeal to the Licence Appeal Tribunal with respect to the Tarion decision and a proposed settlement entered into between the parties.

[3] At trial, Ms. Faber gave evidence on her own behalf. She resides in this residential property with her spouse, Wayne Usher, who also gave evidence. First View called as a witness, Marcello Giannace, a co-owner of the defendant company and its customer service manager.

[4] Both parties called experts, professional engineers, to provide opinions on the state of the brickwork at this residential dwelling.

The Tarion Settlement

[5] The parties acknowledge that a settlement was entered into between the parties under the umbrella of the Tarion proceedings. However, for reasons that will be more fully explored in this decision, the settlement did not come to fruition. The parties acknowledge that this is not an action to attempt to enforce the settlement.

Damages

[6] A brief word about damages now sought by Ms. Faber will provide a useful starting point. The Statement of Claim sought damages in the amount of $252,000. Ms. Faber now seeks damages in the amount of $100,000, broken down as follows:

(a) $50,000, in accordance with the 2009 estimate she obtained to have the brickwork replaced; and, (b) $50,000, general damages.

Tarion Warranty and Common Law Claim for Damages

[7] In this case, Ms. Faber first commenced proceedings under the New Home Warranty Program and later commenced this action by way of Statement of Claim. I will have more to say in these Reasons about both proceedings and the timing of the Statement of Claim, but it is clear from judicial authority that the Ontario New Home Warranty Program is not a complete code as between a new home buyer and a builder. The Court of Appeal dealt with this issue in Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850. After reviewing the legislation and the facts of that particular case, Laskin J.A. stated at paragraph 69:

This Act [the Ontario New Home Warranty legislation], however, does not contain any language to show that the legislature intended to preclude a civil action against the vendor on the statutory warranties and require homeowners to go to the Licence Appeal Tribunal...

[8] As the Court further noted at paragraph 71:

A third consideration -- one related to the consumer protection purpose of the Act -- is that claims to Tarion are meant to be a quick and relatively inexpensive way for homeowners to obtain relief for construction defects in their homes…

[9] It is significant in this case to note that Ms. Faber issued a Statement of Claim in December of 2008 but did not serve it on First View until after the parties had arrived at the Tarion settlement in February 2009, whereby First View would rebrick the entire dwelling.

[10] The following dates will provide context for the discussion that follows:

October 30, 2004 Ms. Faber enters into an agreement of purchase and sale with First View to purchase a newly constructed two-story brick home.

August 10, 2005 Ms. Faber takes possession of the new home and obtains a certificate of enrollment from Tarion. Prior to occupancy, Ms. Faber conducted a pre-inspection of the home, but no notation was made of brickwork issues

August 8, 2006 Ms. Faber submitted a year-end form to Tarion noting “9. - Outside - brickwork is uneven and mortar is inconsistent, sloppy with globs of it running down on bricks.”

August 20, 2006 Tarion replied to Faber as purchaser that these items should be corrected or repaired by the builder. The Purchaser was given from December 8 to January 15 to file a conciliation inspection request. No request was made by Ms. Faber.

August 8, 2007 Ms. Faber filed a second-year warranty form with Tarion noting: “6. - Brickwork very, very poorly done. Mortar is two different colours, large and small seams all over the bricks, brushed with a broom? Consistent displacement of bricks and some deterioration of mortar.”

August 9, 2007 Tarion acknowledged receipt of this form and provided a conciliation inspection opportunity if requested between December 7 and January 14.

March 13, 2008 Tarion prepared a warranty assessment report noting: “Under section 13(4) of the Act, complaints of this nature must be received by Tarion in writing within the first year after the date upon which the home is completed for possession. This complaint was received after the expiry of the warranty. This complaint is consistent with normal shrinkage of materials caused by drying after construction and it is therefore specifically excluded from warranty coverage under section 13(2)(d) of the Act.

May 13, 2008 Tarion sent a decision letter to Ms. Faber denying the claim with written reasons indicating the complainant did not provide a conciliation request and “[t]his complaint is consistent with normal shrinkage of materials caused by drying after construction and is therefore specifically excluded from warranty coverage under section 13(2)(d) of the Act.”

June 3, 2008 Ms. Faber filed a Notice of Appeal to the Licence Appeal Tribunal about Tarion’s decision regarding the brickwork.

June 16, 2008 Tarion contacted the Licence Appeal Tribunal and requested that First View Properties Inc. be added as a party to those proceedings.

August 26, 2008 At a licence appeal tribunal pre-hearing, the matter was adjourned while the parties worked on a settlement.

September 30, 2008 At a further pre-hearing, the matter was adjourned for a further inspection by the parties. Further adjournments followed.

December 5, 2008 Ms. Faber commenced a claim by Notice of Action, naming First View Properties Inc. as Defendant for breach of contract.

December 24, 2008 Ms. Faber filed a Statement of Claim against the Defendant for breach of contract requiring replacement of bricks, damages claimed were $252,000. It was not served on the defendant until May 2009.

February 23, 2009 Faber and First View arrived at a settlement under the umbrella of the Licence Appeal Tribunal proceedings. Faber’s solicitor forwarded a Notice of Withdrawal and Settlement document to counsel for Tarion withdrawing her claim against Tarion based on a settlement schedule that was attached. The settlement provided as follows: “Scope of Settlement: 1. The builder will rebrick the Applicant’s house. The rebricking will be subject to a one-year Tarion warranty from the date of completion of the work; 2. The repair will take place at a mutually agreeable date in the Spring or Summer of 2009 ; [emphasis added] 3. The builder will not use the existing bricks; 4. The builder will repair any secondary damages caused by the rebricking process.”

May 20, 2009 Ms. Faber’s counsel writes to First View stating incorrectly “The Order requires it to be done as quickly as possible in the Spring, and we are now at the end of May.”

May/June 2009 Ms. Faber serves First View with a Statement of Claim, dated December 24, 2008.

June 15, 2009 First View, having retained counsel, serves a Notice of Intent to Defend on counsel for Ms. Faber.

June 17, 2009 First View’s counsel writes: “Our client was in the process of planning and staging the work when it was served with the Statement of Claim… Unless your client intends to comply with the terms of the settlement, our client is not prepared to proceed with the work necessary to rebrick the house. On the other hand, our client is prepared to proceed on the basis that your client discontinues the Action.”

July 3, 2009 First View’s counsel writes to Ms. Faber’s counsel: “This plan was proceeding until my client was served with a Statement of Claim in this matter… My client can proceed with the work, although an agreement must be in place that when the work is completed this action will be discontinued and all claims against my client will be released.”

July 6, 2009 Ms. Faber’s counsel responds: “Please confirm when your client will do the work under the TARION claim, failing which we will have TARION remedy the problem . The action for damages will continue.” [emphasis added] I pause to note that there is no evidence that Ms. Faber then sought to have Tarion to remedy the problem.

August 7, 2009 First View’s counsel indicated: “…My client has been ready, willing and able to proceed with the work necessary to re-brick your clients’ residence. You waited until July 6 to advise that notwithstanding the settlement and that my client was willing to proceed with the work, you had instructions to institute and prosecute the Action… I confirm once again that our client is prepared to adhere to the terms and conditions of the settlement agreed to.”

Introduction

[11] It is not disputed that Ms. Faber purchased a new home from First View, a registered builder under the Ontario New Home Warranty Program. Ms. Faber chose to have a two-story brick veneer home constructed, choosing sandalwood brick from the builder’s samples. First View has been in the construction of new homes business for 32 years. At the time of this purchase, it was developing homes in the Keswick area and over two to four year period, built 400 to 500 homes. Approximately 80 dwellings were similar to Ms. Faber’s two-story brick home.

[12] The bricks used in this home were tumbled concrete bricks. Tumbled bricks were described by Marcello Giannace for the defence as bricks that were processed in a way that they would look rustic and weathered. A sample of a typical brick was entered into as an exhibit. It has an irregular surface, based on the mold used to produce it. In addition, the machine tumbling adds a further distressed look by leaving irregular corners and surfaces. The result is not the flat, even look which is typical of a clay brick. In this house, the estimates of the number of bricks range from 11,000 to 13,000, therefore creating a similar number of linear feet of mortar joints. The issue at trial is not the bricks themselves, rather it is the colour matching of the bricks, the quality and varying width of mortar joints, cracking of the mortar joints, splatter of mortar, irregular mortar colour and plugged or missing weep holes.

[13] In any claim, the plaintiff bears the burden of proving the claim on a balance of probabilities. Ms. Faber attempted to do so by giving evidence and calling an expert (a professional engineer) as to the quality of the workmanship. I pause to note that Ms. Faber did not introduce any video evidence as to the overall impression of this brickwork from the street or any other vantage points. Although Ms. Faber did call a professional engineer, no bricklayer was called to express an opinion on the workmanship from the point of view of a person who based on knowledge, training and experience, lays bricks as a trade; nor did she call any appraisal evidence as to any negative effect on the value of the residence.

Jennifer Faber

[14] Jennifer Faber is the Plaintiff in this action and gave evidence about her dealings with Tarion and the defendant, the builder. Her evidence was that after she moved in, she began to notice that the bricks did not look uniform, they seemed misplaced, the mortar did not match and there were globs of mortar. She brought this to Tarion’s attention in her first year-end report.

[15] Because the issues were not resolved, she again brought the brickwork issues to Tarion’s attention in her second year-end report, mentioning poor brickwork, different colours and displacement of bricks and falling mortar. As nothing was corrected, she proceeded with the conciliation effort through Tarion. Her complaint was denied and she pursued a Notice of Appeal. She agreed that she signed a settlement and release regarding the Tarion claim, but nothing was done. Her evidence was that the look of the brickwork is still the same – it is unsightly. Her evidence was that there was no water damage inside the house due to brick veneer issues.

[16] When asked why the Statement of Claim was not served for many months after it was issued, she indicated it was not her idea and acknowledged that Tarion was not advised of the lawsuit with First View. She acknowledged that she never sued Tarion. When cross-examined about expenses, she indicated she had none, but thought there would be expenses if the work was done by her, including personal inconvenience.

Wayne Usher

[17] Wayne Usher is the spouse of Ms. Faber and occupant of the residence. He is employed as an HVAC installer. He acknowledged that they did not see any particular problems when the house was first inspected before closing, but issues were noticed and they contacted the builder. The builder’s solution was to attend the property and have it power washed. Mr. Usher said this did not help. He observed cracking and crumbling – issues that are still ongoing. He thought the mortar was weak and there was displacement of brick. He acknowledged that in 2009 when they got an estimate, rebricking the house would be around $47,2500. In addition, he has suffered, and may suffer in the future, inconvenience because of days off work.

[18] He was aware that the claim against First View was commenced in 2008, but not served until May 2009, after the Tarion settlement was entered into.

Expert Evidence

[19] As noted, both Ms. Faber and First View called experts, professional engineers, to opine on the brickwork on this dwelling. Before reviewing that evidence in detail, I will first review the evidence of the defence’s witness, Marcello Giannace.

Marcello Giannace

[20] Marcello Giannace gave evidence that First View is a family business and he is the customer service manager. The company has built over 5,000 homes in the Barrie area. Further, they have built 400 to 500 homes in the Keswick area. Ms. Faber’s home is within that municipality.

[21] Because of their high volume of construction of new homes, they have a preferred supplier of bricks, a preferred supplier of masonry crews and a specialized mortar preparation system that all of their brick crews in a vicinity can have access to. He explained the process of how tumbled concrete bricks are created. The irregular look of the surface of the brick is not generally speaking, mortar splatter, it is the result of the construction of the brick itself.

[22] Marcello Giannace represented the company during the Tarion process hearing. He did not retain a lawyer at that stage. He was involved in all input, having received correspondence from Tarion with respect to the first year and second year reports. He also appeared for the company at the pre-hearings.

[23] With respect to the settlement arrived at, he said he made a business decision to rebrick the house. At that point, he had not retained a lawyer and thought the most economical way to deal with the issue was to rebrick it at his own expense because he could call on favours from his brick supplier, the bricking crews he regularly employed and his masonry supplier. He thought he could get the work done economically. His team of suppliers was willing to assist and share the responsibility for this work. He knew that he would be responsible for the secondary repairs, such as removing decking, eaves trough downspouts and lawn repair after the work was done.

[24] He was ready to get the work done in the spring and the trades were then available. His company was still constructing homes in the area. After the settlement was arrived at, he was then served with the lawsuit. He had no idea that Ms. Faber had issued a Statement of Claim months before the settlement while he was in negotiations with her through her lawyer.

[25] Prior to the Tarion settlement, he had an opportunity to look at the house and thought there was nothing out of the ordinary as far as the brickwork. There was normal shrinkage and cracking, typical of a house years after construction. There was some staining, but nothing out of the ordinary.

[26] When asked about mortar splatter, he said with respect to the tumbled brick, “that’s the look we are achieving.”

[27] In cross-examination, he thought he could get the re-bricking done then for $10,000. A team would dismantle the brick and dispose of it, replace it, then clean up and repair the area.

The Expert Evidence

Ms. Faber’s Expert Evidence

[28] Ms. Faber called as her expert, David Lehman. David Lehman is a professional engineer who was qualified to give expert evidence regarding residential brickwork, based on his knowledge, training and experience. He has been a consulting engineer for over 50 years and is currently president of A.D. Engineering Group Ltd. He is aware of both the Ontario Building Code and Tarion guidelines with respect to brick and masonry work. His CV notes that he provides “expert testimony for homeowners for construction deficiencies…and structural assessments and reports for homeowner perceived deficiencies.” Mr. Lehman provided an acknowledgement of expert’s duty to provide opinion evidence that is clear, objective and non-partisan. However, I pause to note that his experience with respect to expert reports seems to focus on acting for homeowners.

[29] He was first called upon by Ms. Faber to prepare a report in 2008. He attended on site on July 30, 2008 and provided a written report on August 13, 2008.

[30] He returned to the site on February 9, 2018 and prepared a further report in response to a defence report prepared by Building Sciences Inc., dated June 16, 2017.

[31] Although he attended on site on February 9, 2018, his report was not dated until May 3, 2018.

[32] The late delivery of this reply report was subject to judicial scrutiny. In denying a joint request to adjourn the trial, Edwards J. noted in his Endorsement of May 15, 2018: “The Plaintiff’s reply report was, in fact, not sent to defence counsel by Ms. Faber’s counsel until May 4, 2018. The reply report was therefore served seven months late.” Edwards J. further noted at paragraph 9: “…In this case, there has been a complete disregard for orders made by the court as it relates to the Plaintiff’s responding expert’s report and the Plaintiff’s damages brief.”

[33] The late delivery of this reply report put the defence to a distinct disadvantage. The defence expert, Nick Tassone, was not able to review the report and reattend at the premises prior to the trial. I consider this as a factor when I weigh the relative opinions of the two experts.

[34] Mr. Lehman’s first report, August 13, 2008, was submitted to Ms. Faber. Mr. Lehman noted a number of irregularities, including:

(a) an irregular blend of two different brick shades; (b) head and bed mortar joints are in several locations less than ¼” thick; (c) other head and bed mortar joints are excessively wide, exceeding 1” thickness; (d) mortar missing below soldier brick; (e) weep holes missing above the garage overhead door; (f) soldier brick projecting out at an angle; (g) downspout falling off the house; (h) the mortar has been slopped on the outside of the brick units and has not been cleaned off; (i) weep holes have not been cleaned out - no evidence of flashing; (j) the mortar is sandy and crumbling; (k) diagonal settlement crack; and, (l) poor quality of mortar is exhibited by fallen mortar debris.

[35] Mr. Lehman made reference to Ontario Building Code requirements for mortar and CSA standards. He also made reference to Tarion construction performance guidelines. He noted the following from the Tarion guidelines:

Exterior masonry shall not have mortar splatters and stains detracting from the appearance of the finished wall when viewed from 6 m under natural lighting conditions when dry…

The colour/texture of repaired area shall match the existing as closely as possible when dry…

Where a generally uniform appearance is not achieved the wall shall be repaired.

[36] Mr. Lehman talked about the “rain screen principle”, indicating that any moisture absorbed by the brick should be discharged below through weep holes. He felt that weep holes were missing or blocked and was not satisfied that there was proper flashing behind this brick course. Mr. Lehman took a number of close-up photographs with that report that were introduced as exhibits.

[37] Mr. Lehman was concerned about the quality of the mortar, stating in his reply report at page 4:

Numerous additional cracks were discovered this year…It is unlikely that these example additional cracks (and others not included in the current report) could have all been missed during our site investigation 10 years earlier and we are concerned about the lack of quality for the mortar in general which is soft, sandy, and weak (easily scraped by finger nail in many locations and its inability to provide minimal withdrawal resistance to anchor fasteners installed in the material).

[38] Mr. Lehman noted mortar smear with mortar dye bleeding in several locations; however, he conducted no scientific testing of the mortar, other than the scratch test.

[39] Mr. Lehman’s reply report of May 2018 is a point by point reply to the report done by Building Sciences Inc. for the defendant.

[40] Both experts recommended some remedial work. Mr. Lehman indicated in his report at page 13:

In general, there are two options available:

(1) Install components as required (e.g. proper flashing, removing bricks for access, shoring, and reinstalling brick as required), repair or spot replace defective mortar or concrete brick units - ensuring that the finished product for the entire mortar and brick components will result in colour, texture, dimensional, and pleasing appearance on all four sides of the subject residence, or

(2) Demolish and replace the existing brick masonry on all four sides of the subject residence.

Based on the preliminary estimates made by Wayne Usher (and reported to us), option (2) would be the less expensive for obtaining the desired results.

[41] I pause to note that Mr. Lehman did not provide any estimates for the repairs he contemplated, but simply accepted the fact that rebricking would be cheaper based on estimates provided to him by Ms. Faber’s spouse. I further note that Wayne Usher, in his evidence, did not give any estimates as to the cost of repair. He did, however, provide an estimate of the cost to rebrick the house, $47,250. He obtained this estimate in 2009.

[42] In Mr. Lehman’s initial report, he was concerned about water penetration behind the brick and its inability to escape if weep holes were not present. However, 11 years after the fact, there was no evidence at trial of any water penetration into the interior of the house or that the weep holes currently in place were not capable of providing the rain shield necessary in connection with brick veneer construction.

First View Expert Evidence

[43] First View called as its expert, Nick Tassone. Mr. Tassone is a professional engineer and the principal of Building Sciences Inc. He is a civil engineering consultant who has conducted numerous reserve fund studies for condominium corporations, those studies included masonry wall cladding and exterior caulking issues.

[44] Based on his knowledge, training and experience, Mr. Tassone was qualified to give expert evidence for the defence. He reviewed the subject property on June 7, 2017 and conducted a site visit accompanied by Marcello Giannace of First View. He prepared a report, dated June 16, 2017. That report was subject to a reply report by Mr. Lehman, which commented on his report but was not delivered to the defence until May 3, 2018.

[45] Mr. Tassone, in his report, made point by point comments with respect to each and every issue raised by Mr. Lehman. He also noted Tarion’s involvement, stating at page 9 of his report:

Tarion concisely states that there was no detachment, displacement or deterioration of the brick veneer observed at the time of conciliation. Tarion also states that the complaint is consistent with normal shrinkage of materials caused by drying after construction and it is specifically excluded from warranty coverage.

[46] By way of conclusion, Mr. Tassone provided, at page 9:

Based on the observations and findings of our on-site assessment on June 7, 2017, we are of the opinion that the brick veneer is generally in good and serviceable condition. There is no evidence of deteriorated masonry units or mortar joints. There is no evidence of veneer displacement or detachment. There is no need to remove and replace the brick veneer. The following issues identified at isolated locations throughout the exterior walls can be easily remedied and represent defects present with the original installation of the brick veneer as follows:

• Clean excessive mortar in weephole openings and on veneer surfaces;
• Repair colour mortar spot in west wall; and,
• Repair cracked mortar filled joints related only to the original construction and not associated with normal shrinkage or settlement.

[47] In his testimony, Mr. Tassone noted perhaps 100 feet of cracked mortar joint, representing less than one percent of the overall linear feet of mortar.

[48] Mr. Tassone provided a point by point response to the allegations set out in Mr. Lehman’s report. Two specific comments by Mr. Lehman were subject to contrary opinions by Mr. Tassone, and are worthy of mention here.

[49] On page 6 of Mr. Tassone’s report, he notes Mr. Lehman’s report stated “the mortar has been slopped on the outside of the brick units and has not been cleaned off.” In response, Mr. Tassone noted:

There are isolated areas of mortar splatter and/or excessive mortar present; however, due to the irregular shape and texture of the brick veneer and the passage of time this condition was barely noticeable especially when you look at the brick veneer from a distance of 6.0 metres away from the wall assembly under normal lighting and when dry.

[50] On page 7 of Mr. Tassone’s report, he notes Mr. Lehman stated that “the mortar is sandy and crumbling, indicating a lack of masons and Portland cement binder.” Mr. Tassone responded, “Reported condition was not observed at the time of our site visit.”

[51] I pause to note that Mr. Tassone’s evidence was that mortar could be subject to scientific testing; however, the only testing that Mr. Lehman did was a finger scratch test in a few areas. As noted, Mr. Tassone did not share Mr. Lehman’s view that the mortar was sandy and crumbing.

[52] Mr. Tassone also gave evidence to assist the court with respect to damages. His evidence was that there was no need to remove the entire brick veneer structure. The problems were isolated and not widespread – perhaps relating to less than 1% of the linear mortar. His opinion was that it could easily be repaired to code by way of a bricklayer and helper working on site for a few days at a cost of a few thousand dollars. This was the only evidence heard at trial about the cost of repair.

Analysis

[53] I start by review of the Supreme Court of Canada’s decision in Bhasin v. Hrynew, 2014 SCC 71. Although that decision talked about duties of good faith between commercial parties, I believe an analogy can be drawn with respect to this case involving contracting parties. The plaintiff negotiated a settlement with the defendant for the complete rebricking of the house under the Tarion umbrella but, while these negotiations were underway, the plaintiff issued a Statement of Claim without serving it on the defendant for several months until the Tarion settlement was signed. As the Supreme Court of Canada stated in Bhasin at paragraph 33:

The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance. The second is to recognize, a further manifestation of this organizing principle of good faith, that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations.

[54] In this case, Ms. Faber was not honest when she entered into a settlement with First View without disclosing her issued, but not yet served, claim for damages. When it learned of the claim, First View was still prepared to fulfill the settlement, provided the claim was withdrawn. Clearly, the only thing left in the Statement of Claim, if the house was rebricked, was Ms. Faber’s claim for general damages. It is unclear what those damages were then and it is less clear now after the trial. Ms. Faber did not provide any evidence of damages other than the cost of brick replacement. Ms. Faber has never had to vacate the house nor has she established any serious inconvenience as a result of the work. She did not call any appraisal evidence to indicate that there is any diminution of value of the house based on the alleged faulty brickwork.

[55] It is acknowledged by First View, through its expert report that there were some areas of deficiency that needed repair, but there were no deficiencies that required Tarion to repair the brickwork, nor did Ms. Faber call on Tarion to conduct the replacement of brick when the settlement was not achieved.

[56] After considering the evidence of both experts and the lack of any evidence from Ms. Faber from a masonry expert or a real estate appraiser, I accept the evidence of First View’s expert that these minor deficiencies can be repaired at a nominal cost. I am left without any guidance from Ms. Faber as to the cost of repair. Based on Mr. Tassone’s evidence, I am satisfied that judgment for Ms. Faber in the amount of $4,000 for repair is warranted under the circumstances. I am not satisfied that Ms. Faber has proved her claim for general damages beyond the cost of these repairs.

Conclusion

[57] Judgment for Ms. Faber in the amount of $4,000, together with pre-judgment interest in accordance with the Courts of Justice Act.

Costs

[58] First View has been substantially successful at trial. If the parties cannot reach an agreement as to costs, I will receive written submissions from First View. Such submissions not to exceed 5 pages, plus bill of costs, within twenty days of the release of this judgment. Thereafter, Ms. Faber shall have a further 10 days to reply with submissions not exceeding 5 pages, together with a bill of costs. There shall be no right of reply. Costs submissions shall be submitted to my judicial assistant in Barrie.

Mulligan J. Released: July 16, 2018