Court File and Parties

COURT FILE NO.: CV-13-3728-00 and CV-13-3962-00 DATE: 20180928

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Northridge Homes Ltd. Jonathan Kulathungam, for the Plaintiff Plaintiff

• and -

Manjit Sandhu and Harjinder Sandhu Defendants Simon Schneiderman, for the Defendants

CAAJ Construction Inc. and 225043 Ontario Inc. and 2142043 Ontario Inc. Plaintiffs -and- Manjit Sandhu and Harjinder Sandhu and Northridge Homes Ltd. Defendants

Harry Mann, for the Plaintiffs Jonathan Kulathungam for the Defendant, Northridge Homes Ltd. Simon Schneiderman, for the Defendants, Manjit Sandhu & Harjinder Sandhu

HEARD: December 6, 7, 8, 9, 2016 and June 5, 6, 7, 8, 9, 2017

REASONS FOR JUDGMENT

FRAGOMENI J.

INTRODUCTION

[1] The Plaintiff, Northridge Homes Ltd. (Northridge) brings an action against the Defendants, Manjit Sandhu and Harjinder Sandhu (Manjit and Harjinder or the Defendants for ease of reference) for the following relief:

(a) payment in the sum of $49,271.84 (b) a declaration that the Plaintiff has a lien against the property of Manjit and Harjinder (c) in default of payment that the property of Manjit and Harjinder be sold with the proceeds applied to the Plaintiff’s claims.

[2] Manjit and Harjinder are the registered owners and occupiers of a residential premise municipally known as 36 Cattrick Street, Mississauga, Ontario, L4T 1H5. Northridge carries on the business of construction and renovations. Northridge claims that the Defendants retained it to provide construction and renovation work to the property, which included management services and supply of materials. Northridge claims that it provided all invoices for the said work in the total amount of $116,466.31 and as of June 27, 2013 there remains owing to the Plaintiff the total sum of $49,271.84.

[3] In a separate action, the Plaintiffs CAAJ Construction Inc. (CAAJ), 2225043 Ontario Inc. (222) and 2142043 Ontario Inc. (214) bring an action against Manjit, Harjinder and Northridge as Defendants for the following relief:

(a) payment in the sum of $71,868.00 (b) in the alternative, damages in the amount of $71,868.00 for breach of contract, breach of trust, unjust enrichment and for quantum meruit (c) a declaration that the Plaintiffs are entitled to separate individual liens (d) in default of payment that the property be sold with the proceeds applied to the Plaintiffs’ claims.

[4] CAAJ, 222 and 214 claim that Northridge sub-contracted with them to supply labour and materials for the work done at the Cattrick property. These plaintiffs claim that they invoiced Northridge for services and materials in the following amounts:

CAAJ - $40,115 222 - $17,876.60 214 - $13,876.40

[5] In essence, Manjit and Harjinder take the position that they do not owe any money to Northridge and that CAAJ, 222 and 214 did not render invoices to Northridge in the amount they allege.

[6] The Defendants allege that if the Plaintiffs did do the work they claim they did then the work done was below the standard of performance expected and as a result of numerous deficiencies in the work they claim a set-off.

[7] The Defendants also rely on a Limitations Act defence.

[8] The Defendants also claim that a claim of quantum meruit advanced by the Plaintiff cannot be advanced or joined with a lien action pursuant to the Construction Lien Act.

SUMMARY OF THE ISSUES

(a) Is Northridge entitled to a lien? (b) Was there a contract between Northridge and Manjit and Harjinder? (c) If there was no specific agreement as to the price of the contract is Northridge entitled to recover for the value of the services and materials which it supplied on the basis of a quantum meruit claim? If yes, what amount is owing? (d) Are there any deficiencies giving rise to the Defendants’ claim for set-off? (e) Are the Plaintiffs, CAAJ, 222 and 214 entitled to liens? (f) Was there a contract between CAAJ, 222, 214 and Northridge? (g) Did CAAJ, 222 and 214 receive payment for the work invoiced to Northridge? (h) Are there any deficiencies in the work performed by CAAJ, 222 and 214?

Issue #1: Is Northridge entitled to a lien pursuant to the provisions of the Construction Lien Act?

[9] Sections 14(1) and 17(1) of the Construction Lien Act state:

14 (1) A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials. R.S.O. 1990, c. C.30, s. 14 (1) ; 2017, c. 24, s. 12 (1), 66 .

17 (1) The lien of a person is limited to the amount owing to the person in relation to the improvement and, subject to Part IV (holdbacks), it is further limited to the least amount owed in relation to the improvement by a payer to the contractor or to any subcontractor whose contract or subcontract was in whole or in part performed by the supply of services or materials giving rise to the lien. R.S.O. 1990, c. C.30, s. 17 (1) ; 2017, c. 24, s. 67 .

[10] Section 1(1) of the Act defines the meaning of price as follows:

“price” means,

(a) the contract or subcontract price, (i) agreed on between the parties, or (ii) if no specific price has been agreed on between them, the actual market value of the services or materials that have been supplied to the improvement under the contract or subcontract, and (b) any direct costs incurred as a result of an extension of the duration of the supply of services or materials to the improvement for which the contractor or subcontractor, as the case may be, is not responsible; (“prix”)

[11] Northridge points to three areas in the evidence to support its position that “materials and services” were provided to Manjit and Harjinder:

One - Exhibit 3 – the “Write-Up”

[12] Trial Exhibit 3 is the Construction Budget and Notes referred to at trial as the “write-up”. Gurdev Dave Rai, Vice President of operations at Northridge, testified that on or about October 31, 2012, at Manjit’s request, he provided this write-up to him detailing the work to be done at the premises.

[13] In order to give context to this write-up it is useful and informative to reproduce the e-mail chain between Dave Rai and Manjit. These emails were filed as Exhibits 1 and 2 and set out the following:

From: Dave S. Rai < dave.s.rai@gmail.com > Date: Sun, Oct 28, 2012 at 11:51 PM Subject: Re: Following up on our conversation over the weekend To: Manjit Sandhu manjit_200@hotmail.com

Hi Manjit,

I will finish it up without the concrete work. Will still put in some notes on the concrete work though. The write-up will be available end of day tomorrow.

thanks, Dave

On Saturday October 27, 2012 at 9:40 PM, Manjit Sandhu wrote:

Hello Dave,

Hope you are well.

Sorry to get back to you late.

I think you just write up whatever the project is left, however, I would discuss with you the work which has been done when we meet.

I would introduce to somebody next week.

Have a good night.

Manjit Sandhu

On 2012-10-24, at 1:29 AM, “Dave S. Rai” < dave.s.rai@gmail.com > wrote:

Hi Manjit,

I’m working on the write-up for your house and should be able to give you something this Friday.

Just wanted to follow up on the quote you were going to send me for the concrete work.

Do you still want me to look at that?

Dave

From: dave.s.rai@gmail.com [mailto:dave.s.rai@gmail.com] On Behalf Of Dave Rai Sent: December-02-16 12:24 PM To: Jonathan Kulathungam Subject: Fwd: Cost-Estimate write-up for 36 Cattrick

------- Forwarded message--------- From: Dave Rai dave@northridgehomes.ca Date: Wed, Oct 31, 2012 at 11:36 AM Subject: Re: Cost-Estimate write-up for 36 Cattrick To: Manjit Sandhu manjit_200@hotmail.com Cc: Dalwir Rai < dalwir@gmail.com >

Sorry Manjit. The write-up is now attached below.

On Wed, Oct 31, 2012 at 9:05 AM, Dave Rai < dave@northridgehomes.ca > wrote:

Hi Manjit,

Please find attached my first cut of the write-up.

Some of the take-offs have to be confirmed on site.

Let me know when you have time and I’d be happy to meet you or have a call on going through and explaining any questions you might have.

I have to emphasize two things:

1. I’ve assumed finishings based on our discussions and hence the estimates reflect those assumptions.

2. The best way for you to reduce cost is to stay organized and to schedule, especially if you are looking to sell the house as you were mentioning. This will save a lot of temporary heating cost.

Regards, Dave

Two - Exhibit 4

[14] On November 24, 2012 Dave Rai sent Manjit the following email:

From: Dave Rai dave.s.rai@gmail.com Date: Sat, Nov 24, 2012 at 6:50 AM Subject: Write-up for additional work to help finish your house To: Manjit Sandhu manjit_200@hotmail.com Cc: Dalwir Rai < dalwir@gmail.com >

Hi Manjit,

As discussed last week, please find below a quick write-up for the additional work that Dalwir will do for your house. Note that as we both agreed, I haven’t typed up a long contract and kept the content to this brief e-mail.

Please indicate you acceptance by doing reply all and “I agree” or something similar.

• Dal will provide co-ordination and project management for you house. • Duties are limited to the following: • Inform you of lead times involved for different work • Help you schedule and co-ordinate the work, including make you aware of interdependencies between trades • Provide you with quote(s) for each sub-trade required and give you opinion of the accuracy and suitability of the quote • Give you verbal overview of what the duties of each trade are • Provide an inspection for the work of each trade • On-site visits as required • The decision on whether to accept a quote from a particular trade will always be yours. • There is no warranty provided by Northridge or Dal for the performance of work done by any of the trades. We will inform you of any defects to the best of our abilities and help get any issues rectified on a best effort basis only. • Any other work done by Dal or Northridge is to be separate from this. • The charge for this work is $14,000 plus applicable taxes • This charge is separate from the $750 charge due to Dave for putting budget together.

Again, if you could indicate your acceptance by e-mail – that would be great.

thanks, Dave

This e-mail indicates in part, the work that Dalwir will do. It also discusses the role that any sub-trades will be engaged in. It sets out as well that any work done by Dal and Northridge is separate from the work set out in the e-mail.

[15] Gurdev Rai explained the contents of this e-mail as follows in his trial testimony:

Q. You sent this e-mail to Mr. Sandhu and to Dalwir Rai? A. Yes.

…PLAINTIFF ENTERING EXHIBIT 4 EXHIBIT NUMBER 4: E-mail November 24th, 2012 – produced and marked.

MR. KULATHUNGAM: Q. Just dealing with the last two bullets, the charge for this work is 14,000 plus applicable taxes. The charge is separate from – to be charged due to Dave for putting budget together. Why did you put those two bullets in? A. I wanted to document our verbal discussion of what the cheapest Northridge could possibly do the supervision for and I wanted to make sure he wasn’t confused with the earlier agreement of, of $750.00 for writing up that document, the earlier document. Q. And what about any of the work to be undertaken? A. Any of the work to be undertaken, I’ve tried to distinguish it. Make sure that it would be separate. I think that’s the third bullet. So, any work as a – like installing hardwood or trim, it’s not covered in this price. This is purely for supervision. Q. And did – in the e-mail, you asked that Mr. Sandhu reply with a, “I agree,” or some, something similar. That’s the second paragraph. Did Mr. Sandhu response? A. I did not get a response e-mail. He only responded verbally. Q. And what – when did he respond verbally? A. We had a meeting somewhere around December 3rd or 4th on site where Mr. Sandhu met with us, met with – by us, I mean, both Dal and I. We’ve discussed taking on the supervision work. We agreed to it and, and that’s where he had responded verbally. Q. When did Northridge commence supervision work? A. As far as a – early December, the first week of December 2012. As soon as we had that meeting – the framing stuff was out of the way and immediately afterwards, I started looking after the project.

Three - The Invoices - Exhibits 5, 7, 8, and 9

[16] Exhibit 5 – Invoice 217 relates to steel beams in the sum of $5,566.47.

[17] This invoice related to the steel beams that Manjit said he did not have. Dal was asked by Manjit to pick up the steel beams from their supplier. Gurdev Rai stated:

I had given over the phone the go ahead to Dal. And when we met on the first week of December to go over Northridge taking over the supervision this invoice – that amount was still outstanding for reimbursement to Northridge…

[18] Northridge was paid this invoice and there was no dispute by the Sandhus about paying this invoice.

[19] Exhibit 7 – Invoice 227 for $27,638.67. Gurdev Rai testified that Northridge completed all the work set out in the invoice. The invoice sets out the following:

Budget created by Dave Rai 750.00T Basement Lumber and Framing 4,800.00T Supply and deliver hardwood flooring 11,434.00T Supply and deliver Tiles 5,175.00T Supply and install floor screw 650.00T Grading work for Brick including Equipment Rental 1,300.00T Welding 350.00T Total GST 3,179.67 Business Number: 861611507

[20] With respect to the framing that was done by Dalwir Rai, Gurdev explained why the $4,800.00 is on this invoice:

A. So, the framing done with Dalwir was the structural framing for the house. Normally, when you build a new house, the basement is, is not framed, it’s concrete walls with blanket insulation on it. Once we took over supervision, there was still a number of items that Mr. Sandhu wanted done with respect to framing. Post – first week of January of 2013, Mr. Sandhu – father was getting sick and he had asked us to just get things done. And one of the things that was remaining – that was on his wish list was basement framing. So, we just got it done for him. And supposed January 2013, what happened was all of the work that was general items and not particularly, a particular subcontractor could do – you know, a little bit of, of framing work, clean up, grading, we undertook to, to get that done separate from the supervision fee.

[21] Exhibit 8 – Invoice 229 for $53,946.20. Gurdev Rai explained the contents of this invoice at trial as follows:

Q. And can you explain to this court what, what is included in this invoice. A. So, included in this invoice is labour for installing the hardwood, supplying and installing all of the trim work meaning the interior doors, casing, baseboard, the amount of crown moulding that was indicated in my budget write-up. The next one is that – the next three items are labour and materials for extra things that Mr. Sandhu had requested during installation of trim work. He wanted wainscoting done in the dining room, he wanted ceiling details in the family room and as a result of those ceiling details, it’s a waffle ceiling, there’s, there’s a lot of extra crown moulding that, that has to be installed inside the waffles. So, that’s what that pertains to. He had seen the custom railings at my house for the staircases. The next item, he wanted railings exactly like that. So, the next item is to supply and install those custom railings. He also had seen the artist (ph) and wanted to trim all of his – a certain way that wasn’t covered in the initial trim agreement. The next item wire mesh actually, it, it was for tile not, not for garage. So, my bookkeeper had made an error saying it was wire mesh for the garage but it was actually the wire mesh that goes at the bottom of tile. We had – his sun pump had burned out, the one that was originally there. So, we had supplied and installed a new sun pump. And then, we had done some concrete cutting for him. So, rental of equipment to concrete cutter, and labour for that.

[22] Exhibit 9 – Invoice 232 for $31,943.97.

[23] The Defendants, Manjit and Harjinder, argue that Northridge’s Construction Lien was not timely and it was registered on work that is not lienable. Northridge, however, points out that neither of these issues were pleaded in the Statement of Defence. In the circumstances, Northridge submits that the Defendants cannot raise a new defence at trial. Northridge points to the decision in Arkilander v. Michasiw, 2013 ONSC 6597 at para. 31 in support of its position:

The Plaintiffs/Defendants by counterclaim take the position that this claim is statute barred because the applicable limitation period has passed. However, they did not plead a limitation defence and did not seek leave to plead this defence even after they were provided with the documents upon which Mr. Michasiw relied. A limitation defence is an affirmative defence. If it has not been pleaded it is not before the court and cannot be raised in argument. In my view, a simple denial of the claim being made does not provide sufficient particularity to allow the defence to be applied.

[24] In the alternative and in any event Northridge submits the defence position on validity cannot be sustained on the evidentiary record at trial. I will deal with this issue on its merits.

Position of Manjit and Harjinder on Validity of the Lien

[25] In their written closing submissions Manjit and Harjinder set out their review of the evidence in support of their position there is no valid lien. Manjit and Harjinder submit the following:

• No evidence was called by Northridge to prove the lien registration or perfection date of their lien.
• Other than acknowledgement by defence counsel that their lien was preserved on July 16 (not July 6 as Northridge says in their submissions, Para. 7(p), nothing was heard at trial about these Lien Act requirements.
• Given the July 16 Northridge lien registration, the forty-five day period during which the lien must be preserved was June 2 through July 16, 2013.
• The CLA deems a contract to be complete when the last supply of services or material is the lesser of 1% of the contract price or $1,000.
• No evidence of the contract amount was proffered by Northridge, nor was the contract amount addressed in their submissions. (It is submitted for the Plaintiff to address omissions in their Reply would be to impermissibly split their case.)
• Northridge did produce invoices Exhibit 5 ($5,566.47), Exhibit 7 ($27,638.67), Exhibit 8 ($53,946.10) and Exhibit 9 ($31,943.97), total $119,095.36. However, Northridge says Exhibit 5 was related to the framing and not their contract. Thus the aggregate they appear to be relying upon is $113,528.84. In any event the lesser amount is $1,000.00.

[26] Further, the Defendants submit that there is no invoice from Northridge for work allegedly done on June 27, 2013. Nor do the invoices of CAAJ, 222 or 214 specifically reference work done on June 27, 2013. The Defendants argue that the invoices dated June 25 (Exhibit 8) and June 26 (Exhibit 9) do not reference work being done between June 2 and June 26. None of the attachments to Exhibits 8 and 9 reflect work done in June 2013.

[27] The Defendants also point out that the occupancy inspection was done on May 22, 2013 and no further work was done following this date.

Records for CAAJ, 222 and 214

[28] The Defendants point to the following evidentiary deficits as it relates to those records:

Invoices of 222 and 214

• Gurdev Rai did not know when the invoices of 222 and 214 were received by Northridge. He assumed the month of the invoice represented work done that month.
• Dalwir Rai did not provide any evidence as to when the 222 and 214 records were prepared. Asked when one such invoice (from 214) was created he could not say.
• Nor could Dalwir say when Harkalmat or Jaswinder worked on the project.

Caaj Records

• Dalwir Rai did not address work specifically done between June 2 and 26, 2013.
• He speculated that some work was done in May or June 2013 but did not provide any specific dates.
• It was unexplained why Exhibit 9 predates work actually done. There was no evidence when it was created or evidence of a practice of billing in advance of work done.
• CAAJ has an Invoice dated June 26, 2013, which purports to reflect the work for the month of June, but without specifics.
• There was no evidence that Caaj records (Exhibit 25) were prepared contemporaneously with the events they record.
• Dalwir testified that his source notes (the “Hours Book”) for the hours recorded in the CAAJ Invoices became unavailable following a motor vehicle accident.
• Without the Hours Book he could not say what dates he had actually worked in the months referenced in the CAAJ invoices.
• He could not even remember the year in which the supposed accident occurred yet he professed to remember details of June 27, 2013.
• The Caaj Hours Book was not listed in Schedule “C” of the Caaj Affidavit of Documents (documents formally in their control but no longer in their possession), even though he understood it was relevant to his lawsuit (and all parties were ordered to deliver comprehensive Affidavit of Documents by May 1, 2015).

Was Work Done on June 27, 2013?

[29] The Defendants submit that in the absence of an invoice for the work done on June 27, 2013 the work allegedly done on this date cannot be relied on to support the lien. Harjinder, Manjit and Rakesh all testified that no work was done on June 27, 2013. The Sandhu family was mourning the death of Manjit’s father from June 26 to 28, 2013. The Defendants also point to the following factors:

• Manjit testified that no appliances were installed by Northridge.
• Despite having paid for it, Manjit said that no clean-up was done by Northridge.
• Gurdev initially deposed on October 26, 2016 that no appliances were installed by Northridge then changed his evidence at trial.
• Braich testified that he too was on site on June 27 and he too could remember the date because it was a holiday weekend. But he could not remember any other date he worked at Cattrick. He had a motive to colour his evidence to assist Northbridge; he was given work by them since 2010 and knew they needed his help to support the lien.
• Braich’s evidence can’t be relied upon in aid of the June 27 attendance. In any event, his work is irrelevant to the lien because it was repair; supervision or repair like the repair itself, it is submitted, cannot assist lien preservation.
• Jaswinder Gill and Harkulmat Singh did not testify as they might have been expected to do, either in support of their own liens or that of Northridge’s. Given their failure to testify, an inference ought to be drawn adverse to the work having been done as claimed by Northridge for June 27, 2013.

[30] In conclusion the Defendants submit the following:

a) there was no evidence of work being done between June 2 and 26, 2013 nor the value of such work; b) the work of June 27, 2013 did not occur and, in any event, is not invoiced; c) nor is there evidence of the value of non-repair work done on June 27, 2013.

Position of Northridge on Validity of Lien

[31] Northridge takes the position that its work on the project began in December 2012 and continued until the project was completed or abandoned on June 27, 2013 for non-payment. Northridge registered the lien on July 16, 2013, well within the 45 days following the date of a project’s completion or abandonment.

[32] Northridge submits that work was done in the month of June. In support of that submission Northridge points to the following evidence:

− the supporting invoices for Invoice 232 contain dates in June 2013 and work done in that month − it is only logical that material purchased in May for work done in June would occur as material is purchased prior to installation − the fact that work was done in June 2013 is further supported by the CAAJ invoice detailing “supervision and management for the month of June” − Gurdev Rai testified that the invoices were received and reflected the work completed. No further evidence was necessary on this point.

Was Work Completed on June 27, 2013?

[33] Northridge submits that for the first time after three years of litigation, it was suggested that a funeral was taking place at the property on June 27, 2013. Northridge points out that this idea of a funeral was never put to either Gurdev or Dalwir. At no time prior to the trial did the Defendants plead this fact or provide any evidence in their previous affidavits or cross-examination on those affidavits that there was a three-day mourning from June 26 to 28.

[34] Further, at trial the Defendants produced photos allegedly depicting the mourning for the first time. The photos marked as trial Exhibit 56 had never been previously produced or disclosed. The photos have no date stamp. The Defendants could not provide the underlying metadata date for the photos.

[35] Northridge argues that the evidence clearly supports its position that work was done on June 27 and in support of that argument refers the court to the following evidence:

− Dalwir confirmed in his testimony that he was personally on site on June 27 − he remembered the date because he had been asking Manjit for payment for some time. Dalwir had promised his children that he would go on vacation during the Canada Day long weekend and wanted to take the Friday June 28 off. − On June 27 Gurjant Singh (Braich) was also present as were two other employees doing the clean up − Dalwir met with Manjit on June 27 and gave him Invoice No. 229 (Trial Exhibit 8) − Braich testified that Dalwir had forced him to come and do the work before the Canada Day long weekend and also confirmed that no one was at the house except the painter, Dalwir and Manjit.

[36] Northridge also points out that the testimony of Sood that he took the photos on June 26 is not reliable or credible.

Lienability of Work Done on June 27

[37] Northridge submits that at no time prior to serving their closing submissions did the Defendants ever take issue with the lienability of Northridge’s work and the fact that this allegation was not pleaded, alone, is enough to render it a failure. Northridge argues that in any event the work done was lienable. With respect to the invoices both supervision and clean-up was completed on June 27, 2014 and as set out Invoice 232 (Trial Exhibit 9 – Invoice 232 dated June 26, 2013) clean-up services are a supply to an improvement as required by the Act. Exhibit 9 sets out items for clean-up labour in the amount of $1,800.00 and labour for final inspection in the amount of $670.00.

Analysis & Conclusion on Issue #1

[38] I am satisfied on the evidentiary record called at trial that Northridge has a valid lien.

[39] Firstly, it is troubling that the timeliness of the lien or whether the work done was lienable is raised for the first time at trial. As Northridge points out, neither of these assertions were pleaded in the Fresh as Amended Statement of Defence. In Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, at para. 123, the Court stated:

I begin by noting that this issue was not raised in the pleadings. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings – the parties are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at para. 60.

[40] In Moghimi v. Dashti, 2016 ONSC 2116 the Court noted the following at para. 16:

Relying on the sad state of pleadings and a judge’s expression of despair because they are here to stay is hardly compelling legal reasoning in support of an amendment in this case. Pleadings have important purposes in the just determination of a dispute. They provide notice to the other party of the case that she has to meet. There is no principle more important to the fairness of a dispute resolution process than that each side is entitled to fair notice. Once the parties know what the case is about, they make choices and take actions. They produce relevant documents based on the issues raised and facts pleaded in support of those issues. They may question the other parties and possibly third parties as well on the facts that underlie the issues or which arise from the documents produced. At trial, the pleadings set the scope of the admissibility of evidence. Evidence presented at trial must be relevant to an issue joined in the pleadings.

[41] I agree with Northridge that the failure to plead these assertions, now being made at trial, is fatal to the Defendants’ position advanced at trial. Having said that, however, and in the event my conclusion on that issue is in error, I will deal with the merits of the issue on the evidence called at trial.

[42] I am satisfied on the evidence that Northridge worked on this project from December 2012 to June 27, 2013. Northridge registered a construction lien on the property on July 16, 2013, nineteen days later, and well within the 45 day statutory timeline.

[43] I am satisfied as well that the supporting invoices for Invoice 229 and Invoice 232 set out work done in the month of June.

[44] Trial Exhibit 25 also corroborates the fact that work was done in June 2013 as set out in the CAAJ invoices. I accept Gurdev’s testimony that the invoices from CAAJ and the numbered companies were received and reflected the work done by them.

[45] I am also satisfied that the work done by Northridge continued up to June 27. I do not accept the testimony of Manjit or Sood regarding the circumstances surrounding the funeral and mourning period.

[46] Again, it is troubling that this assertion that a funeral and mourning period was taking place from June 26 to 28 is made for the first time at trial. The scenario of the funeral was never put to either Gurdev or Dalwir. Dalwir had to be recalled to address this issue and the photos filed. The photos of the alleged funeral services was purportedly taken by Sood on June 26. However, the photos had never been previously produced or discussed. I find this troubling as well. As Northridge points out, the photos have no date stamp. ­­­­­­­­­­­­­­­­Sood maintained his position that he took the photos on June 26, despite his clear acknowledgement that “I am not good with dates.” He also stated the following:

Not, not a question of not rely – I’m telling you dates may be a little wrong; amount is correct; statement’s correct.

[47] Further, the Defendants could not produce the underlying metadata for the photos. At para 40 of its reply submissions, Northridge sets out in some detail what transpired at trial as it relates to the reliability and credibility of Mr. Sood. It is informative to set that out in these reasons. Para. 40 states:

i. Sood was specifically asked during cross-examination how he prepared for trial. Sood testified that he merely reviewed the evidence given in his earlier cross-examination “in this litigation.” As stated by him, “ that’s it ”. ii. When pressed further on this issue, Sood reluctantly admitted that he prepared notes for his testimony, but that they were in Sandhu’s car in the parking lot adjacent to the courthouse. When asked by the court to retrieve these notes and produce them, Sood took approximately 20 minutes to travel that very short distance, returning with only his cross-examination transcript and no notes. iii. After repeated recesses and indulgences of this court, Sood eventually produced handwritten notes. Sood insisted that he had written those notes himself, which is highly unlikely given that he could not read the notes aloud as he struggled to decipher the handwriting. iv. Moreover, the notes refer to Sood in the third person and contain specific highlight dates which are the significant dates to support the Defendants’ contrived position in the litigation: (a) the date of Sandhu’s occupancy; (b) the alleged date of Sandhu’s father’s death; and (c) the alleged date of the religious ceremony held for Sandhu’s father are all highlighted. v. Sood insisted that the information in the notes, including the key dates were from a review of his own cross-examination transcript. This too was false. He acknowledged during cross-examination that nowhere in the cross-examination transcript of Mr. Sood, is there any reference made to the date of occupancy, Sandhu’s father’s death or the ceremony . vi. Sood testified that at no time since June 2013 had he and Sandhu discussed these dates or the project. This evidence simply is not true. Sandhu acknowledged that he has been close friends with Mr. Sood for approximately 12 years. In fact, the evidence of the Defendants is that Sood and the Sandhus are so close that Sood was invited to attend the most intimate portion of Sandhu’s father’s funeral.

[48] Northridge submits that the mourning ceremony narrative was created for the first time in the June 2017 trial dates. It was never pleaded. It was never put to Gurdev or Dalwir in contravention of the rule in Brown v. Dunn. It was never disclosed in any earlier affidavits and as a result of all of the evidentiary deficits relating to that issue no weight ought to be given to that argument. I agree. Sood’s testimony on this issue is not credible or reliable.

[49] I am satisfied that the weight of the evidence supports a finding that work on this project commenced in December 2012 and concluded on June 27, 2013.

[50] I am also satisfied that the work done by Northridge was lienable. Both supervision and clean-up were set out in the contract as detailed in Exhibits 3 and 4. In 310 Waste Ltd. v. Casboro Industries Ltd., 2004 ONSC 8989, affirmed by the Divisional Court at 2005 ONSCDC 41536, the Court determined that clean-up services are a supply to an improvement as required by the Act.

[51] The last page of Exhibit 3, the write-up, sets out the following with respect to the final clean up:

Final Clean Up :

• Get house ready for move-in
• Lots of misc. items
  • Caulking of baths
  • Get house ready for occupancy
  • Gas proof garages
  • Final clean-up
  • Garage stairs and railings
  • Door closers, etc.
  • Cold room vents
• This is only a general estimate
• Best to do on an hourly basis
• Some material estimated for in addition to labour.

[52] Exhibit 4 deals with supervision and states that Dal will provide co-ordination and project management.

Issue #2 Was There a Contract Between Northridge and the Defendants.

[53] Northridge submits that the body of evidence called at trial clearly supports a finding that the Defendants had accepted and agreed to the terms of the contract sent to them by Northridge. The Defendants’ position that they never received Exhibits 3 and 4 is not credible. Northridge argues that a reasonable person would conclude that the Defendants were assenting to the terms proposed by Northridge in the write-up.

[54] Northridge points to the e-mail of October 24, 2012 at 1:29 a.m. from Gurdev to Manjit and the e-mail of October 27, 2012 at 9:40 p.m. from Manjit to Gurdev.

[55] Northridge submits that it is inconceivable that Manjit would not check his e-mail following the October 27, 2012 email because his father was ill. Manjit stated that he only logged in around the end of January or in February 2013. Northridge points out a contradiction on this timeline. When Manjit was cross-examined on an affidavit on March 31, 2014 he stated he did not sit at his computer between November 2012 and June 2013. Northridge submits that there is no air of reality to Manjit’s version on this issue for the following reasons:

− he continued to work at Canada Post − he continued to visit his father − he continued to visit the site on almost a daily basis as the general contractor − he continued to buy groceries, visit friends, visit the temple and generally lived his life.

Management Fee of $14,000

[56] Northridge refers to Exhibit 4 and that the co-ordination and project management fee is $14,000.00. Exhibit 4 is the November 24, 2012 e-mail from Gurdev to Manjit. Manjit testified he never received this e-mail. Manjit also stated there was no agreement with Northridge regarding this fee as Rakesh Sood provided the management services and was paid $10,000.00 to do it.

[57] In response to this version of events set out by Manjit, Northridge points to Exhibit 48. Exhibit 48 is the handwritten notes made by Manjit. There are eight pages of notes. Manjit was cross-examined on these notes and the following exchange is relevant and informative:

Q. During that time period- okay. Sir, if you turn to page 3- actually, let’s turn to page 2 and tell them if I’m reading this correctly: “During the month of January 2013, my father got very serious illness. He went through three major surgeries plus chemo. My whole attention and time was with him. Unfortunately, he passed away on July 11th, 2013.” That is all true? A. Ah, the, the, during the month of January 2013s, my father got very seriously ill – so his illness started in 2012 – gradually, he got bedridden during that time. Q. Yes. But my question was, what is stated in what I just read, is true? A. Yes, it is true. Q. Okay, then you’ve struck out the next portion of your notes, but, can you read that for me? A. Where? Q. Where it’s scratched out? A. I can’t. Q. Well, the second line, there- “Now on to finish, we agree on $13,000 (management fee).” Do you see that? A. No, I can’t see that. Q. You cannot see that? A. No. Q. You cannot read your own writing there? A. Well, it’s scratched out. Q. It’s scratched out… A. Yeah. Q. …so you cannot make that out at all? I put it to you, sir, that it says, ‘Now on, to finish, we agree on $13,000 (management fee)’? A. No, that’s not true. Q. Not true? A. It’s not true. Q. Can you read that on that note? A. No I can’t read it. Q. You cannot read it? A. No. Q. You’re telling me under oath today that you cannot read what is, what I just read to you? Under oath, you’re telling me that today? A. So, I believe this, this might been, I’m just be…. Q. Answer my question, sir? A. So, my question is – this is what the notes I be preparing for my lawyer, what the Northridge is claiming. Q. My question to you, sir, is, does the notes say, ‘Now, to finish, we agree on $13,000 (as management fee).’ That is written and you cut it out, correct? A. So, I said that he said it. He said that one, the management…. A. So, I never agreed on that, you know. I said I never agreed on any management. THE COURT: Hold on, hold on, there’s an objection. MR. SCHEIDERMAN: Excuse me. The witness was saying what the words say and it’s scratched out, and Mr. Kulathungam didn’t let him complete it. He said…. THE COURT: We’ll, we’ll let, we’ll let the witness- I want, I want to do it this way. I want you to ask the question again because the question was, that part that’s scratched out, that you read to him, ‘Now, on….,’ can he read that. That’s the simple question you asked. I want you to ask it again and I’ll give you an opportunity, sir, to answer that question. MR. KULATHUNGAM: Thank you. Q. Can you, please, can you read where it says, ‘Now on, to finish we agree on $13,000 (management fee).’ You said you couldn’t read that. Can you read that? A. So, I still can’t read this ones. So, I can’t read it… Q. Okay? A. The one thing is, I’m just be putting the information for my lawyer that what they are demanding for that one, but, I can’t read the paragraph. Q. Well, if you can’t read the paragraph, how do you how you’re putting the information of what they’re demanding? A. So, that’s what they put in the affidavit. They, they said that. Q. No, but you told me you can’t read this, so how do you know that this is what they’re demanding? So you can read it? A. No, I said, I said because you just, just, you, what, what you just read it and just recited. I said, you know, it might be something that one, But I can’t read the paragraph. Q. You can’t read the paragraph? A. No. Q. So you don’t know what it says? A. No. Q. Okay. Next line- ‘Management handling by Northridge, fee of $6,000,’ and you’ve put the $6,000 in a square bracket? A. Yes. Q. So, there was a management fee… A. There’s a … Q. …by Northbridge?

[58] Manjit attended at the site and observed that Northridge and Dalwir were supervising the project and raised no objection to that. Manjit also continually remitted payment by cheque to Northridge Homes again without any question as to why. Northridge asserts that having repeatedly paid Northridge pursuant to the agreement, it is now too late to retract its ratification.

[59] At para. 34 of the closing submissions Northridge outlines numerous reasons why it is not reasonable to find that Sood was in fact the project manager:

(a) Sood lacks the necessary qualification and experience to perform this role. Sood is a relator, but he claims to have experience in the construction industry: specifically, he allegedly assisted in the administrative work of building a hotel in Russia and has been involved in “maybe, two, three” renovations in Canada. These limited credentials are arguable insufficient for performing project supervision. (b) Sood’s role on this project, if any (which the Northridge denies), did not at all resemble that of a project supervisor Sood himself stated that he did not: remain at site while the trades completed their work, schedule the trades, pay the trades, keep an accounting for the trades; keep a log for the trades; know how many welders attended the site or how they were paid; keep a list of deficiencies; or, keep any notes. Indeed, the description Sood repeatedly provided as to his alleged role was that he “was just hired to make sure the work goes smoothly.” For this service, Sandhu purports to have paid Sood $10,000.00. (c) Sood was not consistently present at the Property during the Project, an obvious necessity for a project supervisor. Regarding Sood, the Defendant Mrs. Harjinder Sandhu testified that “sometime he was there, sometime he was not.” However, regarding Dalwir, she testified that “Every time I was there, Dalwir Rai was working there.” Sood himself testified that he did not remain at the site to oversee the trades or inspections. He specifically said “I’m not going to stand there all the time, full day, and see what’s happening around.” Northridge submits that this is precisely what is required of a project supervisor.

Position of the Defendants on the Contract

[60] The Defendants submit that the write-up was never intended to form the basis of a contract. It was prepared by Gurdev as a guide to a budget only.

[61] With respect to Exhibit 9, Invoice 232 containing the management fee of $14,000, Manjit testified he never saw the November 24, 2012 e-mail. Nor did he agree to the supervision quoted or that Dalwir could supervise. Manjit testified that he hired Sood to supervise and manage the project for $10,000.

[62] I am satisfied that there is ample evidence to establish that an agreement was made and that the Defendants accepted the work that was being done, were aware of the work being done and paid for the work being done without complaint or objection. As a result of meetings held between the parties and communication conducted by way of the e-mails set out at Exhibits 1 and 2, a write-up was prepared by Northridge. The terms of the contract are set out at Exhibit 3 (the write-up) and Exhibit 4, the November 24, 2012 e-mail.

[63] Supervision – Manjit testified that he never saw the e-mail of November 24, 2012 or that he agreed to the supervision quoted or that there was written acceptance or acquiescence to supervision by Dalwir.

[64] Manjit takes the position that Rakesh Sood was hired to be the supervisor and project manager and was paid $10,000.00 to do so. Sood stated that his responsibilities included opening and closing the site fence, keeping Manjit informed of the work and making sure it was being done properly.

[65] Northridge submits that Dalwir supervised the project from January 2013 onward. I agree with the position of Northridge on this issue. When Sood’s duties are matched up against the duties undertaken by Dalwir it is clear that the Defendants’ position on this issue cannot be sustained.

[66] From January 2013 to June 27, 2013 Dalwir attended at the property six days a week. Mrs. Sandhu testified as follows on this point:

Every time I was there, Dalwir Rai was working there.

[67] The Defendants witnessed this service and paid for same. Further, Exhibit 48 corroborates the discussion of a management fee as does Exhibit 23, when the only discrepancy related to the amount, $14,000.00 versus $13,000.00.

[68] Exhibit 4 clearly references the $14,000 figure as well.

[69] I am satisfied that the terms of the contract included supervision of this project in the amount of $14,000.00. This amount was later agreed to be $13,000.00 in an effort to resolve the issue.

Issue #3 – If There Was no Specific Agreement as to Price is Northridge Entitled to Recover for the Value of the Services and Material Supplied?

[70] During the trial, on June 5, 2017, Northridge brought a motion to add the claim that, if there is no specific agreement as to price, the alternative argument was to recover the value of the services and materials which were supplied by the Defendants.

[71] The Defendants opposed the motion and I heard submissions on the issue. The Defendants argued that the limitations period had expired for launching, what they submitted, was a new claim. The second submission was that the Construction Lien Act did not permit this claim to be joined with a lien claim.

[72] Following submissions I allowed the motion.

[73] It is Northridge’s position that it did provide “services and materials” for an agreed upon price as set out in the write-up, the e-mails and the invoices subsequently rendered. However, should the court find that there was no agreement on price, Northridge is still entitled to payment on the basis that there is no real dispute that the services were rendered by Northridge to the benefit of the Defendants.

[74] Northridge refers the court to the decision in Consolidate Ventures Inc. v. Amico Contracting Engineering (1992) Inc. 2007, Carswell Ont. 2627, 2007 ONCA 324 at para. 99:

Thus, where the claim for restitutionary relief is based on quantum meruit, as in this case, an explicit mutual agreement to compensate for services rendered is not a prerequisite to recovery. It suffices if the services in question were furnished at the request, or with the encouragement or acquiescence, of the opposing party in circumstances that render it unjust for the opposing party to retain the benefit conferred by the provision of the services. See Fridman, supra, at pp. 290-92; Nicholson v. St. Denis (1975), 57 D.L.R. (3d) 699 (Ont. C.A.), leave to appeal to S.C.C. refused, [1975] 1 S.C.R. x (S.C.C.).

[75] In Landmark Construction Ltd. v. Parvis Sanei-Kashani, 2010, SC 09, 81211-00 the Court held that:

“It is an issue or remedy that only arises where there is no enforceable contract, but goods or services have been supplied in circumstances where it would be unconscionable to let the recipient keep their benefit without providing some reasonable compensation to the supplier.” In other words, “Although no actual agreement has been made between the parties, the law will imply a promise to pay a reasonable amount if the circumstances of bringing the doctrine into play exist.”

[76] I am satisfied that the documentary evidence combined with the oral testimony given at trial establishes that there has been an enrichment to the benefit of the Defendants and a corresponding deprivation to Northridge.

[77] I accept the testimony of Gurdev that the services were rendered as set out in the invoices and trial exhibits 5, 7, 8 and 9. I am also satisfied that the supervision and management fee of $13,000 (reduced from $14,000) is proven.

[78] The invoices of CAAJ, 222 and 214 also establish that these services and material were provided. Gurdev testified that all of these invoices were received by Northridge totalling $71,868.00 and that Northridge owes these three companies this amount. (See invoices set out at Exhibits 25, 26 and 27)

Issues 4 & 5 – What Amount is Outstanding? Should There Be a Set-Off? Are There Deficiencies and Should There Be a Set-Off For Same?

[79] The most effective way to deal with these issues is to look at Appendix A of the closing submissions of the Plaintiff, which sets out the Scott Schedules exchanged prior to trial. It is useful and informative to reproduce Appendix A, to give context to the conclusions reached on these items.

Appendix A

Item No.	Item of Work	Defendants’ Position	Plaintiff’s Position	Court Comments
	Comments	Cost ($)	Comments	Cost($)
1	Grading	Poorly done at At front, back and side of home, improvement required to prevent water flow	17,515.00	Grading was done correctly. The documentation provided by the Defendants including a letter from GTA Surveying Inc. States that he “lands are in general conformity with the ‘certification and proposed building and grading’ previously submitted.” Furthermore, the invoice provided by the Defendants includes items which were never part of the Northridge contract
2	Cleaning Exterior	Debris and construction Material left on Property	1,977.50	Property was left in clean condition by Northridge
3	Grading	Concrete splash required	See Item No. 1	Northridge was not contracted to install the concrete splash
4	Exterior Caulking	Missing around gas pipe line, exterior electrical receptacle, exterior furnace vent, exterior dryer vent	1,300	Northridge was not contracted to install the gas pipe line. Furthermore and in any event, exterior receptacles are never caulked.
5	Exterior Caulking	Large hole left on North side exterior wall	See Item No. 4	The house is brick and stone. Northridge was not contracted to do masonry work.
6	Garage Doors	Broken glass in doors	2,650	Northridge repaired two garage door panels at its own expense, thereby returning the doors to good condition
7	Exterior Caulking	Gas pipe line within garage left unfinished	See Item No. 4	Northridge was not contracted to install the gas pipe line
8	Main Entrance	Improperly installed	200	However, based on a picture provided by the Defendants, all that is needed is installing three screws (which would take about two minutes)
9	Baseboard and Trim Work	Substandard, including incomplete, not vertical; uneven gap between door trim and ceiling	7,700	Uncertain as to how to Defendants claimed $7,700.00 to rectify this alleged deficiency. No supporting invoice has been provided.
10	Framing	Staircase to basement substandard work, squeaks	1,135	Northridge was not contracted to install the staircase
11	Interior Doors and Door Locks	Do not open or close properly strike plates attached to door frame are not aligned to dead latch	2,100	Need further inspection in order to determine if there is any issue with the door locks. Furthermore, any rectification will not cost $2,100.00. $2,100.00 was the total cost of the locks that were selected by the Defendants. If anything, minor adjustments may be required.
12	Crown Molding	Not properly jointed, substandard work and incomplete	600	Do not know the full extent of the alleged deficiencies. All crown moldings have joints. If there is any deficiency, which is denied, any repair work would be minor in nature.
13	Interior Cleaning	Left debris inside, not properly cleaned	1,500	The entire house was cleaned by Northridge after completion of work. No debris was left inside by Northridge
14	Safety Railing and Garage Stairs	Safety Railing not installed, Garage Stairs left incomplete	1,650	All work that Northridge was instructed to do was completed. If safety guards were missing, occupancy would not have been allowed. Northridge was instructed to do the bare minimum for occupancy. No other work was billed for by Northridge.

1 - Grading

[80] The Defendants submit that they paid City Home $19,492.50 to re-grade the property and seek reimbursement from Northridge.

[81] Manjit and Dosanjh testified that the City Home invoice was paid in cash.

[82] The Defendants argue that the grading done by Northridge was inconsistent with the plans as the grade was directed towards, not away from the house.

[83] Northridge takes the position that it was not contracted to landscape and grading is not the same concept as landscaping and Northridge submits that the grading was done by Manjit as the general contractor. Northridge did not provide any warranties as it related to the grading.

[84] Northridge argues that at no time prior to the commencement of the litigation did the Defendants take the position that there was any issue in relation to the grading. As such, Northridge was never given an opportunity to rectify any of the Defendants’ concerns. Northridge points to two pieces of information in support of this position:

1 – The July 8, 2013 e-mail

Manjit Sandhu manjit_200@hotmail.com Mon, Jul 8, 2013 at 10:17 AM To: Dave Rai dave.s.rai@gmail.com

Without prejudice

We have settled all final payments inclusive HST for the work performed at 36 cattrick street. I have written up full and final payments to you you are agreed on it and received.

As per your mail today, I am disappointed and disagree with any outstanding amount. If you are not agree please do not deposit the cheque for the final payments. Or I would stop the payments until court procedure.

Let the Honorary Court handle it.

Two garage doors broken and never replaced. Doors are not opening & close inside the house caused problems to frames and paints, stairs are squeaking crown moulding is losing, coming out etc. which I appointed out earlier.

There are lots of more problems in workmanship.

Your management handling ruined my property.

Regards Manjit sandhu

2013-07-08, at 8:50 AM, Dave Rai dave.s.rai@gmail.com wrote:

Hi Manjit,

Thank you for meeting with me late last week and the check that you gave. Also, I really appreciate you sending me your hand written notes on payment records.

Also, thank you very much for the kind words around the quality and completion of the work. Much appreciate your confirmation in this regard.

As I stated in the meeting, while you have written on the check that this is full and final payment, Northridge does not accept this statement (and in fact, earlier in the meeting you had agreed that we would verify the payments). It is for this reason that I had written a note on the check right in front of you that this statement is not accepted.

There were 3 items I outlined that were outstanding and why Northridge could accept this statement:

• The management fee you were saying was $13K and I had indicated that we had sent you an e-mail confirming that it was $14K. I have forwarded e-mail to you. Please also note that it was plus HST.
• Confirmation of payments. While you and Northridge agreed on all the expenses, we wanted to verify payments as there was a difference showing in our account. The biggest of these payments was $5K you stated was paid in December by check and another $5K paid by cash. We were able to confirm the $5K cash payment. However, we have not been able to confirm the $5K check in December, 2012. Please note that we have not had a chance to check our banking record (only were able to check our own accounting system). We will be able to do this early this week. As a result of this confusion, I’ve asked our book-keeper to do a complete audit of our records for payments being received from you. We will be in touch later in the week.
• HST – We would agree with you that HST has been paid on any materials that were picked up by Northridge and subsequently you paid Northridge. HST on labour charges remains outstanding. Again, we do not accept your position that all of the HST has been paid in full on everything. Again, to make sure – I’ve asked for a complete audit of HST charged. I will point you towards the budget that I had given you for your house (the work we did was based on this budget) – In the there it clearly states that taxes are not included.

Again, thank you very much for the check and the confirmation of the quality and completion of the work. I will do my best to get you a complete write-up of the accounting – so we can settle this at the earliest.

Also – on the repairs to the garage doors – I had Dal check with the garage door company. Do you have a payment outstanding with them? Please let me know.

Dave

2 - Trial Exhibit 48 – Manjit’s Notes

[85] According to Northridge, both documents are silent on any grading concerns. Mr. Jaswinder Sidhu was called on behalf of the Defendants to deal with issue. Mr. Sidhu is a home inspector. He conducted a visual inspection. The following exchange with Mr. Sidhu is relevant:

Q. And you didn’t do any, did you pour any water to check where it was pooling? A. Ah, water? Q. Did you pour any water or spray any water to see how the water was pooling? A. Oh, I’m not supposed to do that. Q. You’re not supposed to – yeah, you’re right. So the only thing you did was you went there and said “oh, this doesn’t look right’? A. Right.

[86] Pawel Matusik was also called by the Defendants on this issue. In his testimony he stated the following:

A. You know, like, I’ve definitely seen worse – I wouldn’t say it’s major work – but definitely, there was still some work to be done.

[87] Karen Rosenbrock testified as an expert with respect to grading and landscape architecture. Ms. Rosenbrock holds a degree in landscape architecture from the University of Toronto, has professional memberships in landscape architecture and is qualified to give grading certificates. She has over 30 years of experience. She testified as follows:

Q. Let’s now deal with grading. What were your observations regarding the grading, in mainly the front and the side yards? A. My primary observation was that the, there was positive surface drainage – that’s the first thing you look for when there’s been a construction, that, that there’s positive surface drainage away from the house – and, in the front yard that was the case, is that the, the grade went from the house to the curb and it was a very subtle slope – it graded away from the house – and it did the same thing in the backyard. The house, it was, it, you know, the surface drainage went from, in the backyard it went away from the house to the back lot line and at the front of the house the grade went from the front of the house to the curb. Q. But my question, then, really is, where to say there is, ‘There has been no additional site grading after August of 2013’ – what’s your basis for making that statement? A. Oh, after Augus-, again, if you look at the photograph – Exhibit 61(a) – and that’s actually a very good photograph because you can see the existing vegetation, the existing trees – you can see the fence-line; you can see the existing trees; you see the grade at the base of the trees – and, that would be the indicator line, is that there was no additional, that that grade had not changed. It’s not like the grade went up and buried part of the tree; it was, the original grades were maintained.

[88] Further, in his report filed as Exhibit 63, Mr Sidhu notes the following at page 18:

Tie rods used for frame work left in cold room, walls could be a source of water penetration and recommended to be removed and the holes (left after) to be fixed.

[89] Mr. Sidhu testified:

Q. So, I’m sorry, they should be cut and, and what did you say after? A. Tie rods are just meant for to join the framework outside. Q. …water penetration could happen here is this, if the ties are left the way they are – correct? A. Right.

[90] Northridge points out that it was retained after the property foundation was poured. I agree with Northridge that the evidence at trial does not establish conclusively that grading was the cause of the water penetration. It is possible and even likely that the foundation work may have been directly or indirectly responsible for any damage.

[91] Northridge also submits that not having been advised of these concerns they were not given an opportunity to address it. On this point Gurdev stated:

A. The only deficiencies raised up to this point in time was those garage doors. A. Did they raise any or make any allegations that you had done incompetent work? A. No, they did not. Q. Did they raise any allegations that the products below standard of what they were expecting? A. No, they did not.

[92] Northridge also argues that the work conducted by City Homes is for separate landscaping work and not re-grading: Northridge asserts that the evidence called by the Defendants on this issue falls far short of establishing this set-off claim. In support of this position Northridge points to the following evidentiary deficits:

• the Defendants called two witnesses from City Homes, Manpreet Dosanjh and Prabhdeep. Dosanjh testified that City Home graded the property and brought 8 trucks of topsoil and triple mix to the property. The Defendants also hired City Home to install a driveway, patio, walkway and gazebo
• Dosanjh could not recall what he had charged for the driveway and he did not have the invoice with him
• Singh was scheduled to testify the next day. The court instructed Dosanjh to have Singh bring the full file. Singh told the court that Dosanjh advised him the file had been lost when City Home had moved offices. However, Singh then testified that there had not been a move of the offices since City Home had worked at the property
• Northbridge questions the veracity of the invoice produced by City Homes at Exhibit 42. Northridge raises the following concerns about the invoice:
• Sandhu testified there were bricks, rubber hoses and debris clearly visible in the topsoil provided by Northridge, however, Dosanjh admitted there were, in fact, no hoses or bricks in the soil when he attended the property
• at paras. 83 to 85 of their closing submissions Northridge states:

Further, Mr. Singh testified that on a subsequent landscaping project at the Property related to a gazebo, City Home removed four/five inches of soil and used trucks to transport that removed soil. No documentary evidence was offered by Sandhu, Dosanjh, or Singh to substantiate the differentiation between the grading, driveway, gazebo, or other landscaping projects. The alleged “file” was never produced.

In light of the lack of evidence on this point and the overlap in the use of trucks and removal of soil between the landscaping projects, Northridge submits that the cumulative charge for these various landscaping projects have been subsumed in the City Home invoice under the guise of grading charges.

Further, given Mr. Dosanjh’s conduct at trial, the non-production of City Home’s file as it relates to the property, the questionable contents of the invoice, the Sandhu’s contradictory evidence with respect to the allegedly deficient topsoil, Northridge submits that no re-grading was completed by City Home.

• no top-soil or triple mix was found at the property as set out by Ms. Rosenbrock. Ms. Rosenbrock stated that if 8 truckloads of triple-mix had been placed on the property by City Home, there would have been some visible trace of it in her testing.

[93] Manjit testified as follows with respect to the work done by City Homes:

Q. Okay. So, you had the time to deal with these deficiency reports but you didn’t have time to check emails? A. At that times, no. Q. No. So, you, you had time to do all of this- what you’re saying now, that you created these deficiency notes that you gave to Dalwir, but you had no time to check emails at that time? A. That’s your agreement, sir, because it is, it depends on the sw- Q. That was my question to you, sir? A. My question is, because the severity of the situation, I have a no time to check the emails. That’s my answer, question. Q. Let’s turn to Exhibit 42- it’s City Home Construction Inc.? A. Correct. Q. Do you see that? A. Yes, I do have. Q. Now, City Home Construction Inc. also did your driveway and all the walkway and the concrete around the house, correct? A. Correct. Q. They, in fact, did the gazebo at the back, or the platform for the gazebo? A. Correct. Q. And, you paid them cash? A. Yes. Q. And you paid them $19,492.50 in cash? A. This is a separate for just the regarding and fix the defects caused by Dalwir Rai-Northridge. Q. Okay. So let’s deal with – this work, when was it undertaken, the one, it, as it related to Exhibit 42- do you know when they did the work? A. So, I believe they start digging sometime in May 2013 or June 2013- exact date or month I don’t remember- but during that time period. Q. That time period. And, you say the work was done, and, for instance- five trucks of stone and brick, mixed soil and dumping fee- so, give trucks of stone and brick were taken out? Do you know? A. I wasn’t present there, that time. Q. Okay. So, we have to- any information you can give us as to the work done is based on what’s set out in this invoice? A. Ah, one thing’s sure, because, they removed the stone, brick-mixed soil, so, the transportation cost plus the dumping site cost, um, so, but how many trucks, I didn’t count. Q. Okay. So, but it’s all, so, what you- the only information you can give us today is what’s on this invoice, correct? A. Yes. Q. You did not see them do the work or see how many trucks were taken out or how many trucks were brought in, what type of trucks they used, what type of excavator they used- you would have no knowledge of that; you’re relying on this invoice? A. I have seen sometimes, actually, because they are the using the excavators; small excavators, they were using that one.

[94] I am not satisfied on the evidentiary record before me, including the evidentiary deficits identified by Northridge that the City Homes Invoice attaches to the work complained of by the Defendants at this trial: I am once again troubled by the fact that City Homes did not and could not produce its file. Dosanjh stated it was lost during a move yet Sandhu states there was no move. The lack of the fully documented file setting out the work done, apart from any contractual obligations Northridge had, matched against any additional work done by City Homes not forming part of the contractual obligation of Northridge is very problematic for the Defendants.

[95] The court cannot parse out this work based solely on the invoice attached at Exhibit 42.

[96] Exhibit 42 is an invoice dated August 27, 2014 for the following work:

CITY HOME CONSTRUCTION INC. HST: 835182551 We take care about the future www.cityhomeinc.ca

INVOICE

12484 Innis Lake Road Number: 1036 Caledon, ON, L7C 2Y4 Date: 27 Aug. 2014 Harley: 416-832-4690 Manpreet: 416-417-4522

To: Manjit Sandhu Job Location: 36 Cattrick st Mississauga, ON L4T 1H5 Tel #: 416-213-1425

Item No.	Description	Amount
1	Removed stone and brick mix soil from the in-front and back of the house (6000 Sq. ft)	1500.00
2	Loading of 5 trucks of stone and brick mix old soil and dumping fee	1650.00
3	Delivered triple mix top soil (8 trucks)	2400.00
4	Grading of soil around the house	2150.00
5	Removed all the wood debris and garbage around the house	1750.00
6	Supply and laying of sod	7800.00
7	Approval of grading pass by city of Mississauga
	Subtotal	17,250.00
	HST 13%	2,242.50
	Amount Due	19,492.50

• 2% interest per month (24% per annum) on overdue account

Customer Signature Contractor Signature

Basement Framing

Northridge Invoice 227 - $4,800 – Exhibit 7

[97] The Defendants submit that this amount was included in the payments made as set out in Exhibit 29. Dalwir had given Manjit these quotes, the third one being $7.00 per 4,500 square feet. Manjit testified that the 4,500 square feet included the basement. Dalwir testified as follows, in-chief, with respect to Exhibit 29 as follows:

Q. And what’s on right hand sign when it says 4,500 times 7, cash paid, what is that? A. This was the house. It was 4,500 square feet.

[98] The Defendants point out that Dalwir did not say the 4,500 square feet did not include the basement. The Defendants also point out that the write-up excluded framing in the description of the work Northridge was agreeing to do.

[99] The Defendants submit, therefore, that the $4,800 ought to be deducted from the invoice at Exhibit 7.

[100] Northridge submits that Exhibit 29 is clear that the 4500 square feet reference is for the first and second floors only. Exhibit 29 is a handwritten note and sets out the following:

Inderjit Singh 3,316

• 1,120 = 4,446 Jaswinder Singh 7,000 Har Kulhimat Singh? 3,456 4,500 x 7 = 31,500 Gurkirpal Singh 1,833 Cash Paid

• 11,000_ Sukhpal Singill? 1,937 20,500 Grupreet Singh 1,440__ 20,554 18,982 --> 18,982
• 20,572 For North Ridge Homes For Beams & Sheets Jaspreet Rai 1,572 $5,566.47

[101] I agree with the Defendants on this issue. Exhibit 29 is not clear that the 4,500 only includes the first and second floors. If that was the intention of Dalwir that notation could have and should have noted this restriction. The evidence of Dalwir that “This is the house”, again, without stating clearly the “house” means only the first and second floors, does not support Northridge’s position.

[102] In all of these circumstances I am satisfied that the $4,800 should be deducted from the invoice at Exhibit 7.

[103] The Defendants submit the following with respect to Invoices 227, Invoice 229 and Invoice 232:

Supply & Delivery of Hardwood Flooring – Invoice 227 – Exhibit 7 - $11,434

• The invoice from Canadian Flooring attached to Exhibit 7 is inconsistent ($12,344) with the amount in the Northridge invoice ($11,434), something Gurdev could not explain.
• Nor could he explain why the Canadian Flooring invoice, Exhibit 28, for $11,434 listed different materials.
• It was only Dalwir who linked the Canadian Flooring invoice with the Cattrick project. The supplier record makes no reference to that address.
• Dalwir claims the discrepancy with Exhibit 28 is because the attachment to Exhibit 7 represents higher priced items in place of those previously ordered but unavailable.
• Manjit said he paid for the $11,434 directly to Dalwir, and recorded the payment on the document.
• A reasonable inference is that Exhibit 28 represents the correct attachment and was not produced by Northridge because it supports the payment Manjit described.

Supply and Delivery of Tiles - $5,175

• As with the Canadian Flooring supporting invoice produced by Northridge, there is a discrepancy with the attachment for this item. The one produced by Northridge is incomplete (page 2 of 2 is missing). The complete document produced by Manjit records the payment that Manjit says he made for the tiles.
• Again, the inference that can be drawn is that the incomplete version of this tile invoice was produced because the complete version (Exhibit 39) supports Manjit.
• In the Plaintiff’s submissions, much is made about the evidence of Rakesh Sood in connection with the $11,000 cash payment that he witnessed. However Rakesh also testified to witnessing two other cash payments, one for the tiles, $5,175.00 and the other for $1,000.00, neither of which he was cross-examined upon.

Grading Brick for Work and Equipment Rental - $1,300

• The only quote Manjit got for grading was for the exterior grading ($5,000) in May 2013; there was no grading for the brick agreed to or required.

Welding - $350

• Manjit said he paid the welder cash directly, at the instructions of Dalwir.
• Northridge had no record of this alleged disbursement.

Northridge Invoice 229 – Exhibit 8

Install Hardwood - $5,850

• Manjit paid for the hardwood flooring with this cheque for $25,000, Exhibit 11.

Supply and Install Trim - $20,200

• The payment for doors, trims and crown moulding was made by Manjit’s cheque dated January 4, 2013, for $10,000.00, $12,000.00 cash plus $8,000.00 in cheques to workmen at Dalwir’s direction.

Cheque dated 2013/02/11 - $8,500

• Although not specifically enumerated, the baseboards were paid for at the request of Dalwir Rai by this cheque, Exhibit 12.

Wainscotting - $4,300

• Manjit paid for the wainscoting (something never discussed with Gurdev Rai) amongst the payments listed for internal work in Exhibit 21.

Ceiling Detail Labour - $2,000

• This was agreed to by Manjit and paid for.

Ceiling Material for Family Room - $680 & Extra Crown Moulding - $3,400

• He agreed to pay $680 but did not agree to pay for extra crown moulding.

Supply and Install Custom Railing - $7,400

• There was no agreement for this.

Custom Trim Arches - $1,400

• This was agreed to and paid for amongst the items listed in the internal finishes.

Supply and Install Wire Mesh for Garage - $1,070

• Gurdev Rai acknowledged that this billing was in error and was in, in any event, not agreed to by Manjit.

Sump Pump - $550

• The sump pump was paid for by Manjit and, contrary to Dalwir’s evidence, was not replaced.

Labour and Equipment Rental for Cutting Concrete - $890

• This was not agreed to by Manjit.

Northridge Invoice 232 – Exhibit 9

Clean- up Labour - $1,800

• Although this had been agreed to and paid for by Manjit there was no final cleanup; and the property was left in a considerable mess.
• Here too, despite the fact that Hitmat and Jassi allegedly did the cleanup, no evidence was called from them, permitting an adverse inference against this work having been done.

Supply and Install Topsoil - $1,800

• Manjit paid for topsoil but what was installed was not clear topsoil.

Prep for Rear Deck and Pour Tables - $1,160

• See paragraph re Caulking, paras. 173-174 below.

Supply Hot Water - $985

• This was paid for by Sandhu as reflected in Exhibit 40.

Supply and Install Exterior and Interior Caulking

• The caulking was agreed to by Sandhu but was not properly done. Dalwir agreed to do all the caulking required.
• Notably, the Northbridge invoice doesn’t distinguish between caulking Northridge was or was not supposed to do. Gurdev elaborated, after the fact, that caulking was only to be done by Northridge in limited areas, which is not apparent from the document.

Miscellaneous Supplies - $472

• This was not agreed to by Manjit.

Labour for Final Inspection – Safety Railings and Garage Stairs - $670

• There was no final inspection or safety railings done by Northridge.

Garage Stairs by Northridge

• This was not done.

Installation of Appliances - $480

[104] The Defendants submit that they paid the following sums:

(a) by cheque - $89,304.00 (see Exhibits 10, 11, 12, 13, 15, 29, 32 and 33) (b) in cash - $29,442.63 (see Exhibits 22, 29, 38, 39, 30)

[105] The Defendants submit that this total amount of $118,746.63 is consistent with the initial verbal estimates from Dalwir that the project could cost upwards of $100,000.

[106] Northbridge addresses the cash payments allegedly made by the Defendants at paras. 40 to 45 of its closing submissions. At para. 41 Northridge states:

Trial Exhibit 48 and the figures set out by Sandhu in his own handwriting do NOT support his viva voce evidence at trial. In fact, Sandhu’s notes are consistent with the accounting records and the evidence provided by the Plaintiff . The amounts as set out in Exhibit 48 are identical to the very penny with Northridge’s customer balance detail which is Trial Exhibit 16. As stated in the cross-examination:

“And you would agree with me, sir that apart from the last line – credit memo – all of the other figures correspond and agree with Exhibit 48 of your notes? A. So, answer your question is, yes, but prior to that one I have seen another customer balance sheet, details all transactions, which was printed in July 15, 2013…”

[107] Northridge submits that any further cash payments made by the Defendants over and above what is set out in Sandhu’s own notes at Exhibit 48 cannot stand. Northridge argues that without receipts or some evidence to corroborate the payment the court cannot find and conclude that such payments were made.

[108] With respect to the $11,000 payment paid to the workers directly, although Sood testified that he was present and witnessed Manjit pay the workers directly to the workers in cross-examination that evidence became unclear:

A. No, it was given to Jassy, please. Q. And, was there any explanation – could be have Exhibit 29? The payments to the individuals that are written on the left-hand side of Exhibit 29, you witnessed those payments? A. Yes. Q. It was given to Dalwir Rai? A. Yeah, when he came back, yes. Q. And today, you know that it was $11,000? A. Sorry? Q. You know that it was $11,000 that was given? Did you see the $11,000 being transferred? A. When you show me, the exhibit is right there. Q. Okay, but did you know that without the exhibit? A. Sorry? Q. Did you know that without the exhibit? A. That’s why I said ‘a large sum.” Q. Did you see $11,000 being given by Manjit Sandhu to Dave Rai? A. It was a packet and given to him along with the cheques. That’s what it was, as it says in the paper. Q. Okay, so you’re assuming it was $11,000? A. Yes, I’m assuming.

[109] On this evidence and without confirming documentary evidence it is difficult to find that these cash payments were in fact made. However, Exhibit 29, which sets out a series of payments made does reference a cash payment of $11,000. I find that this entry supports the Defendants’ position and although Sood did not see the exact amounts being handed over I am satisfied that $11,000 was paid in cash and ought to be deducted from the amount owing.

Issue # 4 – Deficiencies

[110] Schedule A is the Scott Schedule exchanged by the parties setting out the deficiencies raised by the Defendants and Northridge’s position on each of the items.

[111] Northbridge submits firstly that there are no deficiencies and in any event the Defendants have failed to provide any quantification of value for the alleged deficiencies (apart from the grading issue). No evidence was led by the Defendants as to the cost to rectify any of the alleged deficiencies. At para. 97 of its reply submissions Northridge submits the following:

It is also important to note that the Defendant’s refused the Plaintiff’s even access to inspect the alleged deficiencies. It was only after orders of this Honourable Court were obtained including the Order of Mr. Justice Lemay wherein he commented on the fact that the “Defendants adopted an aggressive approach” and through their “unsuccessful” opposition they have been “the authors of a substantial portion of the delay”.

[112] Manjit testified that he gave Dalwir written and verbal details of the deficiencies before the July 5, 2013 meeting. The details of these alleged deficiencies are set out at Exhibit 49 and reiterated to Gurdev at the July 5, 2013 meeting. At that meeting Manjit provided to Gurdev a cheque for $13,807 on the undertaking that all the deficiencies would be corrected. They were not so he stopped payment.

[113] The Defendants argue that the e-mails sent to Manjit by Northridge are self-serving and should be given no weight.

[114] The e-mails are dated July 8, 2013 and July 11, 2013 and state:

Manjit Sandhu manjit_200@hotmail.com Mon, Jul 8, 2013 at 10:17 AM To: Dave Rai dave.s.rai@gmail.com

Without prejudice

We have settled all final payments inclusive HST for the work performed at 36 cattrick street. I have written up full and final payments to you you are agreed on it and received.

As per your mail today, I am disappointed and disagree with any outstanding amount. If you are not agree please do not deposit the cheque for the final payments. Or I would stop the payments until court procedure.

Let the Honorary Court handle it.

Two garage doors broken and never replaced. Doors are not opening & close inside the house caused problems to frames and paints, stairs are squeaking crown moulding is losing, coming out etc. which I appointed out earlier.

There are lots of more problems in workmanship.

Your management handling ruined my property.

Regards Manjit sandhu

Dave Rai <dave.s.rai@gmail.com Thu, Jul 11 at 11:01 AM To: Manjit Sandhu manjit_200@hotmail.com

Manjit,

Your check did not clear. I’m traveling- so have not been able to look into it, but anticipate that you put a stop payment on it.

I find it really disappointing that you change your statements so quickly. You have gone from praising our work to saying that we ruined your property. I think you know which one is the true statement.

Frankly, I am really consumed as to why you do not want us to check our own banking records. You cannot suggest to someone that you have made a payment, and when the other party says they will verify it, you threaten not to make the outstanding payments. It only makes me more curious as to why you do not want to verify payments you are claiming you have made.

There was no dispute (other than HST) on the amounts and the small discrepancies that existed were all adjusted in your favour. The only thing we were looking to do was verify the payments you were claiming. That is fact alone indicates to me that you are not acting in good faith.

Frankly, you used this last check you gave us to try and put pressure on us to accept statements regarding payments that we were not able to verify. Why would you stop payment simply because we wanted to verify the payments?

It disturbing, and frankly I did not expect this from you. Regardless, as you suggest, we will deal with it through the courts.

Regards, Dave

[115] It is troubling once again that the notes at Exhibits 44 and 48 are produced at trial for the first time. Manjit did not mention these notes in his previous affidavits or cross-examination on those affidavits. The first note of any concern about workmanship is made by Manjit in the July 8, 2013 e-mail, in response to Dave’s e-mail of July 8, 2013. Manjit does not provide a detailed list of the problems with the workmanship and in fact only references the following:

− two broken garage doors − doors inside the house are not opening and closing properly − stairs are squeaky − crown moulding is coming out

[116] Although Manjit states that “your management handling ruined my property” he provides no particulars of why that is the case.

[117] In summary, Northridge submits the following:

• The Defendants also allege deficiencies related to work that Northridge was not responsible for, including: Exterior caulking to fixtures installed after Northridge completed its work; Brick work; Caulking of exterior dryer vent; Caulking of exterior gas line, Garage door windows, Cement work; Handrails for the rear entrance; Foundation; Exterior door hinges; String capping on stairs; Certain interior caulking; Basement window and door insulation. Northridge submits that it cannot be responsible for the cost of rectifying these deficiencies.
• The Defendants also allege that the entrance to the Property’s basement was incomplete. Northridge did install railings which were subsequently moved.
• The Defendants also allege that Northridge failed to caulk an exterior electrical fixture. This fixture is sufficiently protected by a weather seal and caulking is not required.
• The Defendants also allege that Northridge was responsible for scratches on an interior door, where there is an obviously visible door hanger that is responsible for the scratches.
• The Defendants also allege deficiencies that were imperceptible on the Technominds Report photos or were so minor required no more than a touch-up to: interior trim; crown mouldings; and dirty washroom tiles. These are not deficiencies.
• Insofar as the court finds deficiencies, the Defendants failed to give evidence to “ prove the alleged deficiencies and the quantification of the value attached to each of them .” In other words, even if deficiencies existed, the law is clear that where there is no quantification of the value attached to each of the alleged deficiencies, no relief will be granted.

I agree with Northridge’s position on this issue.

Credibility

[118] The Defendants submit that on a review of this record it is clear that the testimony of Gurdev and Dalwir is not credible. The Defendants set out the following examples:

Gurdev also demonstrated a willingness to change his evidence to suit the moment. When he thought it served his company’s interest he tried limiting Northridge’s responsibility to “…our job was (to) do enough for occupancy..” On the other hand when he thought it served his interest he denied deposing that Northridge’s responsibility was to do the bare minimum for occupancy.

Similarly he would describe events as if he witnessed them, when it turned out he received that information second hand. For example, his evidence about what occurred on June 27 at the Cattrick property.

It is submitted that much of Gurdev’s evidence of June 9, 2017 (in reply) was unqualified opinion evidence which should not be relied upon. For example his opinions as to when a hand rail would be required and his statement about what would push doors out of alignment.

[119] On the other hand, Northridge calls into question the reliability and credibility of the Defendants’ witnesses and sets out the following examples to illustrate same:

• Sandhu’s claim that his memory had improved when he contradicted prior evidence given on cross-examination.
• Sandhu’s repeated admission: (1) “Ah, definitely I try to put the pieces together […] and, in really, enhance my memory” (2) “Q. And this memory improvement is a result of you getting ready for trial and putting together the facts as you see it now?
• Sandhu’s inconsistencies with respect to his implausible claim of not checking his emails for months, all in an effort to claim that he did not receive Northridge’s Write-Up and, thus, retain them.
• Sandhu’s feigned inability to read his own handwritten notes which refer to Northridge’s “$13,000 management fee” which he now claims not to have agreed to;
• Sandhu’s assertion that his notes are “one-hundred percent” truthful and accurate , until confronted with the fact that his accounting of outstanding amounts matches Northridge’s accounting identically, at which time he claimed that he was rushed to compile the notes and conveniently “outlooked” or “forgot” to record the alleged cash payments upon which the Defendants now rely;
• Mrs. Sandhu’s evidence that no work was permitted during the alleged mourning period from June 11 to June 28, 2013, when the Defendants simultaneously rely on the grading inspection on June 20, 2012 as apparently permissible during this time;
• The Defendant expert Mr. Sidheu’s changing position upon re-examination regarding whether additional soil was required to correct the grading;
• The testimony of the City Homes employees including the alleged “move” of the City Homes offices where resulted in the loss of the file providing that the gazebo and grading were separate projects and the eye-contact and nodding to Sandhu;
• Sood’s evidence with respect to the funeral photographs and the suspect circumstances under which that evidence was given, including the very likely fact that his evidence was based on notes prepared by the Defendants

Summary of the Position of Northridge

− This is simply a case where the Defendants are refusing to pay for services rendered and have altered their story after-the-fact to attempt to avoid their financial obligations. − At all times, the Defendants expressed satisfaction with the work completed. It was only after the commencement of litigation that any deficiencies were alleged. − A series of credibility issues arose at trial with respect to the Defendants’ witnesses. Northridge respectfully request that these be seriously considered by the Court in assigning weight to the evidence provided.

[120] In summary, Northridge submits the following:

(a) The Defendants did in fact retain Northridge for supervision and construction services; (b) This Agreement was accepted and performed pursuant to the scope and terms clearly outlined in the parties’ correspondence; (c) Northridge rendered and delivered invoices to the Defendants; (d) The Defendants have failed to remit full payment for these invoices; (e) No set-off should be applied to the Outstanding Amount of $49,271.84, i. With respect to the grading: The Defendants failed to inform Northridge of the alleged deficiency; Northridge was not responsible for compliance with the standards set forth by the City of Mississauga; ii. any further alleged incomplete or deficient work was not Northridge’s responsibility to complete; or is too insignificant to justify any substantial set-off of the Outstanding Amount owing by the Defendant.

[121] Northridge asserts that the Defendants have gone to great lengths to complicate this matter and distract this Honourable Court from simple question at issue in this case: is Northridge entitled payment for the supply of “materials and services” rendered to the Defendants? Their unnecessarily aggressive approach to this litigation and their ever-changing positions have prolonged and complicated what should be an efficient and summary route to resolution pursuant to the Construction Lien Act.

[122] Northridge argues that Defendants are refusing to pay for services rendered and have repeatedly altered their story after-the-fact to attempt to avoid their financial obligations. This was the case at trial and it was the case in their Closing Submissions where they have raised new defences not included by the pleadings or mentioned at any other stage of his litigation.

Summary of the Position of the Defendants

[123] If the Court rejects that $118,746.63 was paid by the Sandhus, there were $40, 017 worth of items not agreed to of those listed in Exhibits 7, 8, and 9.

[124] If there is no agreement for the items referenced, then the quantum meruit claim is out of time.

[125] If the Court accepts there is a contract without agreement on price then burden lies on the Plaintiff to establish the value of the work through independent evidence, which they did not do.

[126] Even if the Court is satisfied that the value of the work was established, the Defendants are entitled to set off the following items:

(a) $19,492.50 (City Homes Invoice), alternatively $16780.50 ($14,850 inclusive of HST.) or in the further alternative, the Northridge final grading, labour/sod amount, $3,900; (b) Interior/Exterior Caulking $2,100; (c) Clean-up, labour $1,800.

CONCLUSION

[127] I am satisfied that the evidentiary record before me establishes the following:

(a) The Defendants did in fact retain Northridge for supervision and construction services; (b) The Agreement was accepted. Services and materials were provided pursuant to the scope and terms clearly outlined in the write-up and the parties’ correspondence. I do not accept Sandhu’s evidence that he did not receive the relevant emails; (c) Northridge rendered and delivered invoices to the Defendants. I do not accept Sandhu’s evidence that he did not receive the invoices; (d) The Defendants have failed to remit full payments for these invoices. Sandhu’s claim that he remitted various cash payments is difficult to accept and I agree with Northridge’s position that Sandhu’s personal notes match Northridge’s accounting of the outstanding amount to a level that points away from Sandhu’s position on that issue; (e) Northridge is entitled to payment for same pursuant to the parties’ contract or, in the alternative, pursuant to the doctrine of quantum meruit; (f) When payment was not forthcoming, Northridge registered a timely and valid lien on the Property; and, (g) There are no deficiencies that warrant set-off to the Outstanding Amount of $49,271.84.

[128] I am, however, prepared to reduce the amount claimed by the following amounts:

− the basement framing of $4,800.00 as set out at Invoice 227 − $11,000.00 for the cash payment as noted at Exhibit 29 − $1,070 for the supply and installation of the wire mesh for the garage

[129] The total amount found to be owing, therefore, is $49,271.84 less ($4,800 + $11,000 + $1,070 = $16,870) for a balance of $32,401.84.

[130] Judgment shall issue in favour of Northridge in the sum of $32,401.84 with the appropriate pre-judgment interest from June 27, 2013 and post-judgment interest from the date of judgment in accordance with sections 128 and 129 of the Courts of Justice Act, RSO 1990, C. 43 as amended. A declaration shall also issue that the Plaintiff has a valid lien against the subject property of the Defendants. In default of payment the Plaintiff is entitled to sell the property and apply the proceeds to satisfy this judgment.

[131] The Plaintiff shall serve and file its written submissions on costs within 20 days. The Defendants shall serve and file their response to the Plaintiff’s submissions on costs within 20 days. The Plaintiff shall serve and file any reply to the Defendants’ submissions on costs within 10 days.

RE: CAAJ CONSTRUCITON INC. and 225043 ONTARIO INC. and 2142043 ONTARIO INC. v. MANJIT SANDHU and HARJINDER SANDHU and NORTHRIDGE HOMES LTD.

COUNSEL: Harry Mann, for the Plaintiffs Simon Schneiderman, for the Defendants Manjit and Harjinder Sandhu Jonathan Kulathungam, for the Defendant Northridge Homes Ltd.

[132] The Plaintiffs identify the primary issue in this action as follows: whether they are entitled to payment for the supply of materials and services to the Defendants.

[133] Northridge did not file a defence in this action and admitted at trial that these Plaintiffs were hired as sub-contractors to provide materials and services for the 36 Cattrick Street property.

[134] The Plaintiffs state that the scope of their retainer was dependant on the agreed work set out between Northridge and the Sandhus.

Framing

[135] These Plaintiffs state the following on this issue:

• Dal provided 3 quotes to Mr. Sandhu, and the parties agreed to a price of $7.00 per square foot.
• The work agreed to would include framing of the house excluding the basement, as well as an extra charge for supplying steel beam and post.
• The parties agreed that Dal would undertake this work directly rather than as a subcontractor of Northridge.
• On December 5, 2016, Dal provided Mr. Sandhu with a handwritten statement of account for framing, totaling $31,500 ($7.00 x 4500 sq. ft.) as well as an extra $5,566.47 payable to Northridge “for beams and steel.”
• Mr. Sandhu made a partial cash payment of $11,000.00 towards this work, to the individuals identified in Dal’s handwritten account.
• The framing work was not reflective of a contract between any of the plaintiffs, Northridge, and the Sandhus, except to the extent that Northridge was reimbursed for the price of materials used in framing.
• The framing work was completed in December 2012.

[136] These plaintiffs submit that the following work was done:

CAAJ

[137] CAAJ is a corporation through which Dal Rai conducts his business as a labourer. Dal submits that he attended at the property in two capacities after the framing work was completed:

(a) to perform the supervisory work agreed to between Northridge and the Sandhus (b) to perform construction and general labour work as necessary and agreed to between Northridge and the Sandhus.

[138] Exhibit 25 is the December 2, 2012 quote from CAAJ to Northridge. The quote confirms a $45 hourly rate for Dal. Northridge would be responsible for other labour as required and ultimately provided by the 222 and 214.

[139] On January 27, 2013 CAAJ provided a second quote regarding the installation of custom trim work. This was a fixed-price job which necessitated a separate quote.

[140] On February 28, 2013 CAAJ provided a third quote to Northridge and Northridge was required to supply helpers at its own costs. Jassi and Hemat were the helpers and whose numbered companies are co-plaintiffs in this action.

[141] During the period of CAAJ’s work it delivered its invoices to Northridge, who in turn delivered them to Sandhu through Dal, who was regularly on site.

[142] Manjit at no time objected to this arrangement and in fact made payments to Northridge.

222 Performed work on the Property

[143] 222 is a corporation through which Jaswinder (Jassi) Gill performs his work as a general labourer. 222 provided the five invoices set out at Exhibit 26 directly to Northridge all detailing the work performed at the rate of $28.00 per hour. The work consists of the following and corresponds with the Northridge invoices delivered to Manjit:

i. Site Supervision was performed by 222 in the absence of Dal during the month of December 2012 ii. Tiles, brick and delivery iii. Trim delivery iv. Grade for brick. Jassi performed the labour necessary to grade the property so that a scaffold could be appropriately setup for external masonry work to be performed. v. Hardwood floor related work vi. Tiles and brick vii. Basement framing viii. Doors and trim ix. Baseboards install x. Help with railing xi. Wainscoting extra crown xii. Move stairs and landing framing xiii. Grading xiv. Framing garage stairs xv. Inside/outside caulking xvi. Appliances install xvii. Install safety railings and ready for occupancy xviii. Final clean-up.

214 Performed Work on the Property

[144] 214 is the corporation through which Harkulmat (Himat) Singh performed his work as a general labourer. 214 provided 5 invoices directly to Northridge detailing work at $20.00 per hour. This work corresponds with Northridge invoices provided to Manjit. 214 did the following work:

i. Hardwood install ii. Basement framing iii. Clean up iv. Move stair pieces v. Help doors and trim vi. Railing vii. Help caulking; sanding trim; trim and stair framing; trim dap caulking viii. Outside level dirt ix. Dig outside post x. Help Jassi with garage stairs.

[145] Gurdev, on behalf of Northridge, admitted at trial that it received the invoices of these Plaintiffs and that the work detailed in these invoices was performed. The evidence called at trial, according to these Plaintiffs, supports the position of Northridge.

[146] These Plaintiffs did not receive payment for the work invoiced by them and it is for that reason that these Plaintiffs commenced their action.

Position of Sandhus

[147] The Sandhus submit that the sub-trades, CAAJ, 222 and 214 are not the actual sub-trades of Northridge.

[148] In the alternative, the Sandhus submit that the liability of the Sandhus to the sub-trades is limited to a holdback of 10% of the contract with Northridge. If any amounts are found owing to Northridge by the Sandhus those amounts must be allocated by way of holdback to the sub-trades on a pro-rata basis, assuming their lien claims are valid.

[149] The Sandhus repeat and rely on their closing submissions in the Northridge action and submit that the Northridge lien is out of time so the sub-trade liens are also out of time.

[150] I have already determined in the Northridge action that the Northridge lien is properly filed.

Are these Plaintiffs Actual Sub-Trades of Northridge?

[151] Manjit testified that he had never heard of any of the sub-trade corporations. Sood and Harjinder thought the workers on site worked for Northridge.

[152] Dalwir, according to the Sandhus, held himself out to Manjit and Sood as working directly for Northridge.

[153] These plaintiffs clearly disagree with the position put forward by the Sandhus and reiterate their assertion that they are in fact sub-trades. In support of their position they point out the following factors:

1. there would be no reason for these plaintiffs to deliver their company invoices to the Sandhus – they were contracted by Northridge
2. the CAAJ invoices were incorporated into the Northridge invoices
3. the 222 invoices were incorporated into the Northridge invoices
4. the 214 invoices were also incorporated into the Northridge invoices
5. Dal wrote the names Jassi and Himat as he simply didn’t remember the correct company numbers
6. Manjit and Harjinder saw Dal, Jassi and Himat working on the property.

I agree with the position of these Plaintiffs and the evidentiary record reviewed in these reasons support that finding.

Deficiencies

[154] These plaintiffs address this issue in their closing submissions at paras 29 to 50. These plaintiffs submit that on a review of the Technominds Report filed by the defendants and marked as Exhibit 63, it is evident that the deficiencies were either very minor or were not the responsibility of the plaintiffs.

Grading

• Mr. Sandhu handed the grading plans to Dalwir Rai sometime in May 2013, and Dalwir Rai that he and Jassi Gill undertook to complete the grading according to Mr. Sandhu’s instructions. Plaintiffs heard no complaints from Mr. Sandhu about the grading work done on the property, and according to were not aware of any issues with the grading until the trial. The photos presented as evidence of poor grading are not clear and do not demonstrate that the work done by the Plaintiffs was incomplete or deficient, as they reflect no measurements or testing.
• As general contractor, it was Mr. Sandhu’s responsibility to ensure that the grading passed city inspection. Plaintiffs should not be held responsible for deficiencies of which they were unaware at the time.
• Mr. Sandhu also never raised the grading as an issue of deficiency in any of the follow-up conversations he had with Northridge and/or Plaintiffs in June or July of 2013, when the parties were attempting to settle the matters between them.

Drainage

• The Plaintiffs were not contracted to install concrete splash drives. Furthermore, the debris at the bottom of the drain pipes may have been placed there after June 27, 2013.

Exteriors General

• Plaintiffs left the property in a clean and orderly condition. To the extent that debris was left on-site, plaintiffs submit that it was not their material, or if it was, it was placed there after June 27, 2013.

Missed Grouting/Caulk

• Most of the missing grouting identified is minor in nature and could be fixed quickly and inexpensively. (i) The grouting around the gas line could not be applied until the mortar had been installed. Plaintiffs were not contracted to do any mortar work on-site, and therefore could not have applied the grouting themselves. The location of the gas line had been changed after plaintiffs last visited the property. (ii) An exterior electrical receptacle already has a visible gasket surrounding it and protecting it from weather conditions, so no caulking was necessary at this location. (iii) The furnace vent shown was not present on June 27, 2013 when plaintiffs last visited the property. (iv) The hole found in the walls are required to be repaired by brickwork, which plaintiffs were never contracted to do at the site, and they cannot be held responsible for this deficiency. (v) An uncaulked dryer vent was not the plaintiffs’ responsibility to caulk. (vi) The exterior garden hose was not present at this location on June 27, 2013, and could therefore not have been plaintiffs’ responsibility to caulk. (vii) Plaintiffs were not contracted to install the gas lines represented on page 13 and 14, and are not licensed to do such work.

Garage

• Plaintiffs were not contracted to install the garage doors. To the extent that there was damage caused to the garage doors that was attributed to the plaintiffs, Northridge repaired the glass panels at its own cost. The hole referred to appears to be related to cement work, and plaintiffs were not contracted to perform any of the cement work in the garage.

Rear Entrance

• The plaintiffs installed a temporary railing on the staircase in order to block off access. The photo in defendants’ report shows that the temporary railing had been set aside against the house. While the temporary block was in place, no railings were necessary, as nobody could access the staircase. A permanent handrail was not required at the time.

Foundation

• Defendants’ expert Mr. Sidhu admitted that the source of alleged water penetration in the photos on might have been the tie rods which were left exposed in the basement concrete. Plaintiffs were not tasked with the concrete work in the basement, and were therefore not responsible for any water penetration that may have resulted from its installation.

Exterior Doors and Windows

• Defendants allege that there were missing screws on the hinges of the front door. Plaintiffs were not contracted to install this door. Instead, this door was installed during the initial framing phase of the project, by Dalwir Rai as an individual. To the extent that these photos do reflect a deficiency, it is one that is minor in nature and could be repaired in a matter of minutes with a small screw.

Interiors

• The missing string-capping shown was not the responsibility of plaintiffs to install. Instead, it was the company that installed the stairs that would bear this responsibility as the string-capping would have to match the stairs.
• The photos presented do not show any clear defect related to missing caulking. However, even assuming that there was some caulking missing there, it would only be DAP caulking to be applied by the painters prior to finishing the trim.
• The photos presented do not clearly show any problem with the alignment of the doors, nor were any supporting measurements provided by defendants to support this allegation.
• The scratches present on the door frame are likely easily explained by the installed hanger that sits on the door itself and which was not installed by plaintiffs. Plaintiffs should not be held responsible for any deficiencies related to these alleged deficiencies.
• The alleged deficiencies in crown moulding were hairline cracks that were measured by Dave Rai to be less wide than the millimetre marking on a clear ruler. Defendants’ expert Mr. Sidhu took no measurements. These are very minor problems that could also be fixed by DAP caulking during painting.
• The photos of the washroom tiles do not show any defect related to plaintiffs’ work. There is no evidence in the photos that the tiles are unclean. Furthermore, defendants had occupied the premises for some time between June 27 and the dates on which these photos were taken in August. Plaintiffs’ work cannot be held to be deficient based upon events that may have taken place after they last attended the property.

Basement

• To the extent that the photos presented by defendants do reflect any deficiencies, as these would be the responsibility of the insulation company, not plaintiffs. Plaintiffs were not hired to do any basement installation work.
• Plaintiffs submit that defendants have not shown any true deficiencies with the work performed by them, and thus, no set-off should be applied to the amounts due to them.

I agree with the position of these plaintiffs.

[155] On the evidentiary record I am not satisfied that the Defendants have proved the deficiencies they claim are the responsibility of these Plaintiffs, nor have they provided a proper monetary basis to prove those claims.

CONCLUSION

[156] I am satisfied on the evidentiary record before me that these Plaintiffs are entitled to the relief requested and judgment shall issue as follows:

1. to CAAJ in the amount of $40,115.00
2. to 222 in the amount of $17,876.00
3. to 214 in the amount of $13,876.40

[157] A declaration shall issue that each of the Plaintiffs are entitled to a lien in their respective amounts.

[158] In default of payment the subject property may be sold and the proceeds applied to the amounts owing.

[159] Pre-judgment and post judgment interest shall apply in accordance with sections 128 and 129 of the Courts of Justice Act, RSO 1990, C. 43, as amended.

[160] The Plaintiffs shall serve and file their written submissions on costs within 20 days. The Defendants shall serve and file their response within 20 days. The Plaintiffs shall serve and file any reply within 10 days.

Fragomeni J.

Released: September 28, 2018

COURT FILE NO.: CV-13-3728-00 and CV-13-3962-00 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Northridge Homes Ltd. Plaintiff - and - Manjit Sandhu and Harjinder Sandhu Defendants CAAJ Construction Inc. and 225043 Ontario Inc. and 2142043 Ontario Inc. Plaintiffs -and- Manjit Sandhu and Harjinder Sandhu and Northridge Homes Ltd. Defendants REASONS FOR JUDGMENT Fragomeni J. Released: September 28, 2018