Cherny v. Pollari, 2019 ONSC 1017

Court File and Parties

COURT FILE NO.: CV-16-562702 DATE: 2019-02-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE CHERNY, MIRELLA CHERNY and ELENA CHERNY, Plaintiffs – and – JOHN EDVARD POLLARI and JANIS ELIZABETH MCLEOD, Defendants

Counsel: Mark A. Ross, for the Plaintiffs No one appearing for the Defendants

HEARD: January 30, 2019

BEFORE: M. D. Faieta J.

Reasons for Decision

Introduction

1The Plaintiffs claim damages for the Defendants’ deficient repairs to their cottage. On July 30, 2018, the Statement of Defence was struck by Master Sugunasiri as she found that the Defendants, who were self-represented, had demonstrated a “pattern of deliberate disengagement” in this proceeding. The Defendants were noted in default on August 10, 2018.

2The Plaintiffs bring this motion for default judgment. Following the hearing of this motion and at my request, counsel for the Plaintiffs submitted a letter that clarifies the damages claimed.

Analysis

3Rule 19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, governs default proceedings. The following provisions are of particular relevance:

• Rule 19.02(1) provides that a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim;
• Rule 19.05(1) states that where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed;
• Rule 19.05(2) states that a motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages;
• Rule 19.05(3) states that the judge hearing a motion for default judgment may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented; and
• Rule 19.06 states that a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted.

4Where a claim for unliquidated damages proceeds by way of a motion for judgment, facts going to liability are deemed to be true; however, the facts going to damages must be proven: Umlauf v. Umlauf (2001), 53 O.R. (3d) 355 (C.A.), at paras. 8-9. In such cases, the plaintiff must adduce evidence to prove the measure or value of damages that it has sustained: Family Trust Corp. v. Harrison (1986), 7 C.P.C. (2d) 1 (Ont. Dist. Ct.) at para. 10.

Liability and Deemed Admissions

5The facts in the Statement of Claim that go to liability that are deemed to be true are as follows:

• The Defendants carry on business of performing odd jobs and handyperson work in and around Tiny Township, Ontario;
• The Plaintiffs, Michelle Cherny and Mirella Cherny, are sisters and are the registered owners of a natural pine log cottage in Tiny Township that was built in 1814;
• Their mother is the Plaintiff, Elena Cherny;
• Pursuant to a power of attorney granted by Michelle and Mirella, Elena has authority to handle all matters relating to the cottage;
• In late May, 2016, Elena hired the Defendants to:
  • build and/or repair a railing for the deck
  • fix some of the decking boards
  • caulk all windows
  • re-chink the space between the logs in one location;
  • build and attach small steps at the entry;
  • several other odd jobs, including, opening a chest that had been forced shut and moving a shower head holder to a lower position;
• The defendants were paid $30 per hour for their work plus reimbursement for any materials that the defendants purchased;
• The defendants commenced work at the end of May 2016;
• Elena inspected the defendants’ work every weekend and reviewed the defendants’ work logs and purchase invoices. Elena would pay the defendants by e-transfer within one or two days;
• In about mid-July 2016, the defendants’ work was placed on hold as the Plaintiffs’ family would be spending more time at the cottage. At the time that they left, the Defendants advised Elena that the caulking around the windows had not been completed;
• The Defendants re-commenced work at the cottage in mid-September 2016. The parties agreed that the Defendants would complete the caulking of the windows using scaffolding to be rented by the Defendants as well as the following additional work:
  • Waterproofing and repairing a part of the basement foundation;
  • Reinforcing a bind in the storage shed;
  • Caulking around the flashing on the chimney; and
  • Providing an estimate of the cost to lay patio stones on the front walkway;
• On or about September 17, 2016, the defendants advised Elena that the caulking of the windows had been completed and that the basement waterproofing and foundation repair had been partially completed. Elena forwarded payment of $1,300.00 for that week;
• On September 25, 2016, Elena found that the defendants had stained and painted an entire outer wall of the cottage and several window frames and part of the deck contrary to Elena’s specific instructions not to touch the pine logs. Elena told the defendants to remove the staining and painting and finish the caulking immediately;
• The defendants agreed to remedy the damage at no cost to Elena;
• On September 26, 2016, the Defendants told Elena that they had vacated the property without remedying the damage;
• Elena paid the Defendants the sum of $9,625.00 to do work in and around the cottage between June to September 2016;
• Much of the Defendants’ work during this time period was not completed or was deficient; and
• The Defendants stole several items owned by the Plaintiffs, including a wheelbarrow.

6A letter from Plaintiff’s counsel states:

As a general comment, the damages claimed arise from the Defendants’ negligent work at the property which resulted in high repair/rectification charges:

(i) Despite explicit directions not to do so, the Defendants applied a stain to one wall of a pine cabin and the window trim. In order to rectify, the stain had to be removed with a new stain re-applied to all wood around the cabin and deck so that it matched, as it had previously. Had the staining not been applied by the Defendants, none of these expenses would have been required; and

(ii) The Defendants purported to build/repair the railing for the deck and fix the deck boards. The railing repair was not to code and had to be replaced and the railing facing the south was not repaired at all, despite the Defendants being paid for this work.

7In my view, the deemed admissions are sufficient to find that the Defendants are in breach of contract for the negligence performance of repairs made to the cottage, particularly in relation to the unauthorized application of stain on the exterior of the cottage and the failure to properly repair the deck boards and railings.

Damages

8The usual measure of damages in a breach of contract case are expectation damages. They are intended to place the plaintiff, so far as money can do it, in the same situation as if the contract had been performed: Bank of America v. Mutual Trust Co., 2002 SCC 43, [2002] 2 S.C.R. 601, at paras. 25-27.

9The onus is on a plaintiff to prove that the damages claimed were caused by the defendant’s breach of contract. The court must make all reasonable efforts to assess the amount of that loss on the best available evidence, even though it may be difficult to quantify: Canlin Ltd. v. Thiokol Fibres Canada Ltd. (1983), 40 O.R. (2d) 687 at para. 35 (C.A.).

10The Plaintiffs rely on the affidavit of Richard J. Schmid, a home inspector, that appends a copy of a report that he prepared following an inspection of the cottage on October 12, 2016 (the “Report”).

Removal of Stain from One Exterior Cottage Wall

11According to the Report, the Defendants applied a tinted stain to northwest quadrant above the decking along the west face of exterior of the cottage. Tinted stain was also applied to the wood window trim around the south and west facing windows. The Report states:

The owner wished to have existing wood siding and Logs age naturally with a weathered patina shown on the Upper West and South faces. A clear contrast between Log colouring is clearly illustrated on the SE corner. …

Cleaning and altering the South and West faces on different surfaces has created an inconsistent look throughout the building which will be further pronounced when remedial action removing stain is performed. Time (approximately 2-3 years) will bring the materials in line with the desired patina effect.

12Pursuant to an invoice from Quality Contracting, dated December 6, 2016, the Plaintiffs paid $15,187.20 for the cost of removing the stain from exterior of the cottage. The invoice describes the work performed as follows:

Supply all materials and labour to Glass Blast and restore all existing exterior wood on cottage including removing existing stain, wood soffits and fascia. Total square footage of 3,860 sq ft.

Cost of Staining the Entire Cottage

13Pursuant to an invoice from Quality Contracting, dated June 18, 2017, the Plaintiffs paid $4,294.00 for:

• Prep and stain cottage exterior;
• Remove and clean overspray;
• Wash all exterior windows;
• Supply and install closet shelving;
• Supply and install magnetic catche on closet doors; and
• Supply and install door stops as needed.

14The Plaintiffs claim $3,955.00 for the cost of applying the stain to the exterior of the entire cottage. There is no breakdown of the cost of each of these items. The submission that all of the other work only amounted to $339.00 is unreasonable. I would allocate $2,000.00 to the cost of applying the stain.

15In addition, the Plaintiffs also claim:

1. $1,510.98 for the cost of purchasing 35 gallons of stain applied pursuant to an invoice dated June 6, 2017;
2. $3,390.00 of $4,181.00 described in an invoice dated October 7, 2017, for the skirt underneath the stairs to match the colouring of the cabin. I note that there is no line item for that amount ($3,390.00) on the invoice. The invoice includes other work as well. It states:

Exterior renovations to cottage as follows:

• Re skirt areas under stairs with existing skirting removed from hot tub area;
• Sandblast and prep exterior deck skirting and stain;
• Clean and paint exposed block foundation;
• Remove weed and install filtercloth ground cover in new landscaped areas;
• Install plants and river rock to complete area; and
• Repair lattice on fence as needed.

16The Plaintiffs have not explained why the cost of the staining the entire cottage, or any part of it, should be recoverable given that: (1) the Plaintiffs wanted to have the exterior appear in a naturally weathered condition; (2) they spent more than $15,000.00 to sandblast the entire exterior of the cottage in order to remove the stain applied in certain areas by the Defendants; and (3) the Report indicates that the entire cottage would have the patina desired by the Plaintiffs within 2 or 3 years after sandblasting.

17For these reasons, I dismiss the Plaintiffs’ claim for the cost of purchasing and applying the stain as well as the cost of sandblasting and staining the deck skirting. Instead, I award $500.00 as compensation for any impact on their sensibilities for not having the desired patina on the exterior of their cottage for a period of 2-3 years.

Deck and Railing Repairs

18Elena’s affidavit refers to the Report in respect of the deficiencies related to the deck and railings.

19The Report states:

Porch & Deck. Level: 1st Floor. Location: South West. Wood. In good shape – nicely maintained;

Porch & Deck (2). Level: North East, Wood, Stained (should not have been). Owner also explains how many boards were found to be dangerously loose requiring fastening to avoid falling through decking. Ensure proper fastening;

Railings. Wood. Spingle spacing was not built to current standards. 4” plus spacing noted throughout; and

Railings (2). Location: South. Missing. Wood fence on separate property is old and no apparent work has been performed.

20The Plaintiffs claim $3,390.00 for the cost of repairing the deck and steps to make them safe based on an invoice dated November 23, 2016, in the amount of $4,068.00 for the following work:

Repair existing deck and steps to make safe; Remove 6 existing exterior window trims; Install flashing and seal windows properly to prevent infiltration of rain; Supply and install new custom exterior window trims as required; Caulking to be done after exterior stain is applied; and

21The cost of each of the above items of work are not shown on the invoice.

22The only deficiency identified in the Report in relation to the deck was that Elena had told Mr. Schmid that many boards on the second deck required fastening. I assess the cost of this work to be $500.00.

23It is unclear from the materials provided how much the Plaintiffs paid for the repair of the railings. The Plaintiffs submit an invoice dated May 6, 2018 in the amount of $7,356.30 for the following items of work:

April 25/18 extras for deck repair to existing deck: $1,200.00; Tippage fee for old deck material disposal: $140.00; April 26/18 stair removal and railing installation/deck repair: $800.00; April 27/18 water line for foot wash, electrical work both inside and out: $800.00; May 1/18 remove existing bridge and all components and haul to dump: $800.00; Tippage fee for bridge disposal: $170.00; May 2/18 Dig bridge footings and pour concrete: $1,200.00; May 3/18 extras performed in garage: $800.00; May 4/18 extras performed in garage: $600.00; and HST: $846.30.

24Railing repair is included in the third line item shown above. I award the sum of $500.00 for railing repair.

25The Plaintiffs paid the Defendants the sum of $9,625.00 for their work based on an hourly rate. They seek a return of that amount on the basis that such work was deficient or incomplete. This claim is dismissed as this request goes beyond the usual measure of damages described earlier – namely, to place the plaintiff in the same situation had the contract been performed.

Inspection Report

26The Plaintiffs’ incurred a cost of $1,017.00 for the Report. This claim is granted.

Stolen Items

27Elena states that the Defendants removed and did not return several items that belonged to the Plaintiffs including a wheelbarrow, chinking blocks and wood that was to be used to fix the deck and fence. She states that she paid about $300 for the wheelbarrow, about $500 for the lumber and does not know how much she paid for the chinking blocks. There is no evidence regarding the age, condition or value of these items, nor were receipts or other proof of payment provided. I award the sum of $400.00 for all items.

Conclusions

28The Plaintiffs have made extensive repairs to their cottage that have nothing to do with the work performed by the Defendants. Many of those repairs have been properly excluded from the claim advanced at the motion for default judgment. In any event, for reasons described above, some of the damages continued to be claimed by the Plaintiffs were unreasonable and unsupported by the evidence. I grant judgment in the amount of $20,104.20 to the Plaintiffs.

29The Plaintiffs seek their costs of this action on a partial indemnity basis in the amount of $19,385.74. In addition to the other costs awards made in this proceeding, and in light of Rule 57.05(3) of the Rules of Civil Procedure, which states that if a plaintiff obtains a default judgment that is within the monetary jurisdiction of the small claims court, costs shall be assessed in accordance with that court’s tariff, and section 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I find that it is fair and reasonable for the Defendants to pay the sum of $5,685.00 in costs, inclusive of disbursements and taxes, to the Plaintiffs.

Released: February 27, 2019 M. D. Faieta J.