London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 1338

COURT FILE NO.: 915-13

DATE: 2020/03/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LONDON ECO-ROOF MANUFACTURING INC.

Plaintiff and Defendant to Counterclaim

– and –

KRZYSZTOF KAZIMIERZ SYSON

Defendant and Plaintiff by Counterclaim

– and –

THE TORONTO-DOMINION BANK

Defendant

Ciara L. Pittam, for the Plaintiff and Defendant to Counterclaim

Dagmara Wozniak, for the Defendant and Plaintiff by Counterclaim

Not participating[^1]

HEARD: April 24-27 and December 17-20, 2018, and June 10-12, 2019

JUSTICE I.F. LEACH

Introduction and overview

[1] This judgment addresses questions of liability and damages, advanced by way of claim and counterclaim, arising from an agreement whereby London Eco-Roof Manufacturing Inc., (“LER”), was to install a metal roof on a house owned and lived in by Mr Krzysztof Syson.

[2] In a helpful effort to narrow the issues to be addressed and decided in the course of trial, the parties still participating in this litigation, (LER and Mr Syson), agreed upon certain facts, (although more remain to be decided), and the issues I was to decide.

[3] Although I will have more to say about the evidence and further findings about the underlying facts in this matter, during the course of these reasons, the agreed facts, (which provide the general context for my required determinations), include the following:

• On January 16, 2013, Mr Syson and LER entered into a written contract relating to the purchase, construction and installation of a steel roof on a residential house, (located at 55 Ambleside Drive in the City of London), owned and occupied by Mr Syson.

• The original contract between LER and Mr Syson indicated that Mr Syson was to pay LER the sum of $20,000, (inclusive of applicable taxes), for materials and labour required to provide and install the contemplated steel roof on Mr Syson’s home. It is not disputed that Mr Syson has paid, and LER has received, $10,000 towards the price indicated in the parties’ original contract.

• Pursuant to the contract, LER initially provided material and services to Mr Syson from January 28, 2013, to February 21, 2013. In the following weeks, LER attended at Mr Syson’s property again, to address concerns expressed by Mr Syson about the steel roof installed by LER.

• LER and Mr Syson thereafter developed irreconcilable differences about the quality and workmanship provided in relation to the steel roof on Mr Syson’s home, and the remaining balance of money Mr Syson should pay to LER.

• On April 4, 2013, LER registered a constructive lien against title to Mr Syson’s home. There is no dispute that the lien was subsequently perfected by the commencement of this action, pursuant to the Construction Lien Act, R.S.O. 1990, c.C.30. Nor is it disputed that the lien was registered and perfected in a timely way.

• Complete details of the relief originally sought by LER are set forth in its statement of claim, but LER essentially sought damages for non-payment of sums Mr Syson allegedly agreed to pay in relation to the roofing contract.

• Complete details of the relief originally sought by Mr Syson are set forth in his statement of defence and counterclaim, but he essentially denies any obligation to pay the sums demanded by LER, and damages of his own, based on LER allegedly having breached its contract and/or having been negligent in the manufacture and installation of the steel roof on Mr Syson’s home. In that regard, Mr Syson relies upon, (amongst other things), the equitable doctrine of set off.

• For reasons addressed in further detail below, when LER commenced this action, it originally named The Toronto-Dominion Bank as an additional co-defendant to the proceeding. However, LER’s claim against The Toronto-Dominion Bank was “withdrawn” on March 29, 2016.[^2]

• As a result of its initial involvement in this proceeding, The Toronto-Dominion Bank, (through its “TD Canada Trust” financial division), charged its customer Mr Syson the sum of $672.35, (representing the Bank’s litigation fees and disbursements), by way of a debit to his line of credit account with the bank. Mr Syson seeks reimbursement of that sum from LER, as part of the damages he claims from LER in this proceeding. LER denies that the sum is capable of being claimed as damages in this proceeding, and says that it should be claimed by Mr Syson, if at all, as a disbursement expense incurred in relation to the litigation.

[4] Again, the parties also agreed on the narrowed issues I was to determine; i.e., ostensibly thirteen issues – although one of those issues asks me to rule on approximately 16 subsidiary issues.

[5] Rather than enumerate those issues here, I will replicate them as they are addressed in the course of these reasons. In particular, the questions set forth in bold print below are those asked by the parties – apart from altering of the question wording slightly by referring to “LER” and “Mr Syson”.[^3]

Evidence - General comments

[6] During the course of the trial, I was presented with testimony from five witnesses; three called by the plaintiff, and two called by the defendant. In particular, I heard from the following:

a. Diedrich Friesen, (a 30-year-old currently president of a subcontracting roofing business called “D’s Roofing”), who was called as a witness by the plaintiff;

b. Jeffrey Devost, (a 39-year-old currently employed as a “master installer” by a roofing company called “Green Metal Roofing”), who was called as a witness by the plaintiff; and

c. Joe Malec, (a 50-year-old currently employed as the president of LER, formally renamed “London Eco-Metal Manufacturing Inc.” during the course of the litigation), who was called as a witness by the plaintiff;

d. Krzysztof Syson, (a 69-year-old retiree and the owner of the property on which the roof was installed), who testified on his own behalf with the assistance of an English-Polish interpreter; and

e. Michael Flynn, a professional engineer and president of “Michael Flynn and Associates”, (which performs a wide range of consulting services), who was called by the plaintiff and qualified as an expert witness permitted to provide opinion evidence in relation to metal roofing installation standards, metal roofing structures and mould.

[7] Although Mr Flynn was the only witness formally qualified as an expert entitled to give opinion evidence, following an appropriate voir dire and application of the criteria set forth in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, the plaintiff’s witnesses were entitled to provide lay opinion evidence as contractors and sub-contractors with considerable experience in metal roof installations. Such evidence from experienced contractors is commonplace in construction lien actions.[^4]

[8] By way of further general comments about the above witnesses, and my overall impressions concerning their respective credibility and reliability:

a. In relation to Mr Friesen:

A. At the time of trial, Mr Friesen had been working in the roofing industry, performing work exclusively in relation to metal roofs, since the age of 16; i.e., approximately 14 years. During that time, he had installed “a good four or five hundred” metal roofs. At the time of trial, he was installing metal roofs at the rate of approximately 60-70 each year. Metal roofing accordingly is his speciality.

B. During the course of his extended career in metal roofing, Mr Friesen began by working for a number of other roofing companies and/or sole proprietors doing such work, but eventually formed, in or around 2010, his own sub-contracting company; i.e., “D’s Roofing”.

C. Although D’s Roofing has been doing sub-contracting metal roof installation work for LER since 2010, it does such work for numerous entities and, by the time of trial, was being used by LER primarily in relation to more difficult and challenging projects, with LER now using other sub-contractors and its own employees to handle most of its metal roof installations.[^5]

D. D’s Roofing was retained by LER as a sub-contractor to install the relevant metal roof on Mr Syson’s home, back in 2013. That particular roof was installed by Mr Friesen and his two younger brothers, (employees of D’s Roofing), who acted as a team.

E. Mr Friesen provided his testimony in a simple and straightforward manner, without hesitation – except in relation to questions where he did not quite understand what was being asked, and sought clarification. He readily and proactively indicated potential failings on the part of him and/or his installation team, (e.g., the denting of numerous roofing panels which he then repaired or replaced), when he might just as easily have denied that such things occurred. He acknowledged the existence of certain suggested defects in the roof installed on Mr Syson’s home; e.g., the need to tighten certain screws or replace missing ones, the fact that certain sheets were not cut in a perfectly even or straight chalk-lined manner, possibly panel alignment issues, and certain aspects of the finished roof that arguably could have looked better. He also acknowledged other possible failings; e.g., the possibility of his crew having accidentally broken Mr Syson’s ornamental statute, (as it might not have been seen in the snow), the probability of excess screws being left on the ground surrounding Mr Syson’s home, (owing to winter weather and freezing that restricted the effectiveness of the magnetic sweeper used to address such issues), and the leaving of excess metal panels at Mr Syson’s home for contemplated pick up. In other respects, however, Mr Friesen firmly stood his ground and defended the propriety of other work that had been done.

F. Because Mr Friesen ran his own very active business, and was not dependent on LER for work at the time of trial, in my view he had little incentive to fabricate or exaggerate testimony with a view to benefitting LER, and I never formed the impression that he was doing so.

G. In the course of his testimony, Mr Friesen consistently displayed a thorough understanding of the metal roof he had installed, and the mechanisms he and his team had employed to ensure the roof was functional.

H. On the whole, I found Mr Friesen to be an extremely credible and reliable witness.

b. In relation to Mr Devost:

A. Mr Devost began working in the roofing industry at the age of 15 or 16, and by the time of trial had been doing so for approximately 23 or 24 years.

B. Although he began his roofing career by working primarily on flat and asphalt roofs, he began working on metal roofs in or around 2003. By the time of trial, he had been specializing in metal roof installation for approximately 15 years. In just the last five to six of those years, he had worked on and/or inspected thousands of metal roofs.

C. Over the course of his 15 years devoted to metal roof installation, Mr Devost had worked for a number of roofing employers installing and inspecting such metal roofs. In relation to LER, he performed such services while working for one of LER’s subcontractors, and then for LER directly as a full time LER employee for five years – including the time period during which the metal roof on Mr Syson’s roof was installed and inspected. Following a disagreement with Mr Malec, Mr Devost left LER to work for Green Metal Roof, one of LER’s competitors.

D. During the course of his career in metal roofing, Mr Devost progressed from being a simple installer to an installation crew leader, and then to the position of a “master installer”; i.e., someone recognized for expertise in all facets of metal roof installation, who can be called upon to address difficult metal roofing issues, and relied upon to ensure that metal roofs are installed properly through inspections and individual correct work he performs or oversees. In that regard, Mr Devost explained that there is no professional licensing scheme in Ontario to formally acquire the designation of “master installer”, in relation to metal roofing. It nevertheless is a job description and title recognized and employed in the metal roofing industry, and he has been given that title and job position by successive employers, including LER and Green Metal Roofing.

E. Like Mr Friesen, Mr Devost provided his testimony in a completely straightforward and candid manner, occasionally requiring clarification, but otherwise providing clear answers without hesitation. I was impressed by his ready acknowledgement and proactive indications that there frankly were some events, relating to this particularly roofing contract and inspection, in respect of which Mr Devost lacked an independent or certain memory, having regard to the many thousands of roofs he had worked on and inspected. In other respects, however, he held firm to certain memories, and positions based on his adherence to standard practices he routinely follows in relation to all of his roofing work and inspections.

F. At no time did I form any impression that Mr Devost was trying to be anything less than completely honest in his testimony; e.g., by fabricating or shading his evidence to favour LER in any way. Moreover, Mr Devost had no reason to engage in such conduct, insofar as he now worked for one of LER’s competitors.

G. In the course of his testimony, Mr Devost consistently displayed a thorough understanding of metal roofing systems, (including the one installed on Mr Syson’s property), and what was and was not required to ensure that the roof was functioning properly, and in accord with what he felt were aesthetic standards in the metal roof industry.

H. On the whole, I considered Mr Devost to be an entirely credible and reliable witness.

c. In relation to Mr Malec:

A. I had decidedly mixed impressions of Mr Malec, as a witness.

B. In some respects, Mr Malec presented as entirely knowledgeable about all aspects of metal roofing, and LER’s roofing system in particular. That presentation and impression was buttressed by detailed testimony about Mr Malec’s educational and employment background, and his years of extensive research, travel and experience devoted to understanding metal roofing, and developing unique products, systems and techniques employed by LER in that regard.[^6] Without hesitation, Mr Malec was able and willing to describe, (sometimes at considerable length), the nature, attributes and purpose of various specific components and techniques employed by LER in the manufacture, sale and installation of metal roofing products developed and distributed by LER; some of which are proudly unique and proprietary to LER. Moreover, Mr Malec’s evidence in relation to such matters was buttressed in many respects by the independent but generally consistent testimony of Mr Friesen and Mr Devost, which I found to be credible and reliable for the reasons I have mentioned.

C. In my view, there nevertheless were numerous problematic aspects to Mr Malec’s testimony. For example:

1. Clearly proud of LER’s products and level of service, and its dominant position and reputation in the residential metal roofing industry in Ontario, Mr Malec had a marked inclination to regard questions about LER’s roofing system, and suggestions of possible failings or deficiencies in that regard, with evident disdain. He frequently was dismissive, argumentative and flippant during the course of cross-examination. Like all litigants, he inherently was a partisan witness, and that alone was no reason to disbelieve his testimony. To the contrary, in some respects, I think Mr Malec’s disdain for many of Mr Syson’s complaints was a reflection of how honestly and firmly believes that the complaints lack merit. However, in the case of Mr Malec, such partisan tendencies were more pronounced than usual, and such marked demonstrations of overt bias and disdain for Mr Syson, Mr Syson’s expert Mr Flynn, and at times Mr Syson’s counsel, made me examine Mr Malec’s testimony, (particularly in relation to assertions of expertise about particular matters, in respect of which such bias would prevent his qualification as an independent “Rule 53” expert), with extraordinary care.

2. In some respects, Mr Malec’s testimony was notably inconsistent, in my view, with that of other plaintiff witness testimony. For example, Mr Malec claimed to have stopped by the Syson property when D’s Roofing was at the work site. However, Mr Friesen, (who seems to have been present during all the relevant installation work), had no memory of that happening or observing Mr Malec at the worksite. Moreover, based on his experience, Mr Friesen was sure that Mr Malec definitely would have spoken with the installers had he attended when the installers were there; i.e., as opposed to simply looking up at the installers from the ground, without their noticing him.

3. In my view, there also were numerous instances, highlighted by defence counsel during the course of cross-examination, wherein Mr Malec demonstrably revised and altered his testimony between the time of oral discovery examinations and trial, or during the course of this testimony at trial. For example:

(a) In the course of the underlying discovery process and trial, Mr Malec provided inconsistent indications of the nature of the warranty offered to Mr Syson. I was not impressed by Mr Malec’s alternating suggestions that such discrepancies were attributable to errors made by his secretary, numerous misprints in the 2013 warranty documentation provided by LER, and/or his contemporaneous use of business cards, (one of which was provided to Mr Syson), that supposedly anticipated the nature of a more extended warranty to be offered only in the future.

(b) In the course of the underlying discovery process and trial, Mr Malec also gave what I considered to be quite different indications of who routinely had responsibility for determining the amount of ridge venting required for a particular roof. In particular, he indicated during oral discovery examination that installation crew leaders would do that, (with the assistance of a written work instruction provided by LER), while insisting at trial that he would do so, (with the expectation that his calculation would be provided to crew leaders through office personnel “doing their job”), as asking crew leaders to perform such calculations would make them “go nuts”.[^7] When confronted with the inconsistent indications, Mr Malec eventually indicated, albeit grudgingly, that he made an error in his oral discovery testimony.

(c) I agree with Mr Syson’s counsel that Mr Malec notably revised his testimony, (after hearing necessarily interposed testimony from Mr Friesen indicating that he had never seen Mr Malec at the site), as to who may or may not have been present when Mr Malec claimed to have reached a supplementary oral agreement with Mr Syson about payment for work done to revise original metal roofing installed on the whiskers/returns of Mr Syson’s home. In particular, before hearing Mr Friesen testify, Mr Malec provided a firm indication that his installers were present when he reached the alleged supplementary oral agreement with Mr Syson concerning the whiskers. After hearing Mr Friesen say that he had never seen Mr Malec attend the worksite, Mr Malec’s testimony provided wide-ranging and inconsistent alternatives when it came to who might have been present when he reached his alleged verbal agreement with Mr Syson. In particular, Mr Malec variously suggested that he suspected Mr Friesen was there; that he was not sure who actually was there; that the installers may have come to the site after the verbal agreement had been reached; that the installers, including Mr Friesen, may have been busy doing something else at the relevant time; that a master installer may have been present; or that he might have been there on his own.

(d) As demonstrated and emphasized by Mr Syson’s counsel, Mr Malec also significantly changed his testimony, between the time of his oral discovery examination and trial, as to the meaning of the “$10,000” written on the business card he provided to Mr Syson. In particular, at discovery, Mr Malec testified that was a reference to Mr Syson still owing a further $10,000 at the time the card was given. At trial, Mr Malec testified that it was not a reference to money owed by Mr Syson, but a reference to the amount of money LER had received from Mr Syson. When asked to explain the change in his testimony, Mr Malec simply said he had read the business card one way on discovery, but was reading it differently at trial.

D. For such reasons, I had the impression that Mr Malec was, at times, being somewhat flippant and cavalier with his evidence.

E. On the whole, however, while I regarded Mr Malec’s testimony with suspicion, I was inclined to accept his evidence in relation to proper installation and functioning of the roof installed on Mr Syson’s property. When testifying about such matters, Mr Malec clearly became much more serious and intent. His evidence in that regard was consistent, certain, and clearly based on his extensive familiarity and experience with LER’s products and metal roofing systems. I was less inclined to accept his assertions about his particular idiosyncratic interactions with Mr Syson, which in my view seemed distorted by his obvious disdain for Mr Syson.

d. In relation to Mr Syson:

A. To some extent, my ability to assess Mr Syson’s credibility, at least in terms of the manner of his testimony’s presentation, was compromised by the reality that his evidence was provided through an English-Polish interpreter – although Mr Syson repeatedly gave indications, during the course of the trial, that he actually had a facility in English that enabled him to follow what was being said in English, at least to some extent, without the assistance of an interpreter. It accordingly was difficult for me to assess the spontaneity of Mr Syson’s testimony, as it went through the sometimes very laborious process of interpretation. Nor did I have the benefit of appreciating the manner in which Mr Syson may have been trying to convey certain answers, in terms of emphasis, inflection and nuance.

B. The substance of Mr Syson’s testimony nevertheless made me have doubts about his credibility and reliability. To cite but some of the many examples in that regard:

1. Through lack of memory or design, (e.g., to avoid the binding effect of the Disclaimer, Terms and Conditions set forth on the reverse side of the agreement he admittedly signed), Mr Syson suggested that the additional terms may have formed part of a detached or “loose” document and may not have been on yellow paper, despite indications to the contrary on the document itself. He also suggested the additional terms were not translated and explained to him, although he then acknowledged having an opportunity to review the additional provisions, and his agreement to those provisions. At best, it seemed to me that Mr Syson’s memories of the contracting process were very uncertain.

2. Mr Syson initially claimed that Mr Malec supplied him with two business cards, before indicating in the alternative that it may have been one card with two sides to it. Mr Syson also had difficulty recalling when he may have been supplied with the card or cards.

3. Mr Syson initially testified that he “never ever talked with anyone else but Mr Malec” in relation to the installation of his metal roof, or the workmanship demonstrated in that regard. However, shortly thereafter, Mr Syson flatly contradicted himself by alleging that he had been speaking with “the workers” on his roof, making them aware of defects that needed to be corrected. When I pointed out the apparent contradiction to Mr Syson, he seemed confused, and then reverted to his initial answer; i.e., indicating that he only discussed such things, (i.e., workmanship issues, and “all the work that needed to be redone or corrected”), with Mr Malec.

4. In initially attempting to describe the changes made to the whiskers/returns of his roof, Mr Syson testified that the original sheets used on the whiskers/returns were flat, whereas the sheets in place after the changes had a “ruffled” look. However, the testimony from those who worked on the whiskers/returns, (e.g., Mr Friesen and Mr Devost), supported by the objective photographic evidence, confirmed that the process was precisely the opposite of what Mr Syson described; i.e., with the original “ridged” pattern of sheet metal originally used on the whiskers, (i.e., the same pattern used on the rest of the roof), being removed and replaced by flat sheeting. Mr Syson then reverted to a complaint that the whiskers/returns should have been left in a style consistent with the rest of the roof.

5. When initially asked to recall what alleged deficiencies in the roof he may have communicated to Mr Malec, Mr Syson himself proactively indicated that he had a poor memory that did not serve him very well. He was able to recall such matters only after referring to documents that had been prepared with the assistance of his daughter.

6. Although Mr Syson subsequently claimed to have a good memory in relation to the timing of events, his testimony in that regard was inconsistent; e.g., indicating during the course of examination in chief that all work (including further work on the whiskers/returns) had been completed in March of 2013, but indicating in cross-examination that could have occurred at the end of April, 2013, before indicating, (after the inconsistency was highlighted by counsel for LER), that he simply could not remember such things. He similarly exhibited confusion when trying to answer questions about the timing of the further work done on the whiskers/returns, in relation to the provision of his list of concerns to Mr Malec and the provision of his complaint to the Better Business Bureau; a point that had potential significance, insofar as Mr Syson’s complaint to the Better Business Bureau omitted any indication of dissatisfaction with work done on the whiskers/returns.

7. As noted in more detail below, Mr Syson provided, in his oral discovery examination, in a subsequently satisfied undertaking, and at trial, different estimates – some markedly different from others - as to the total amount of time he personally had devoted to cleaning up his property after those working for LER had made their final departure.

C. On the whole, I therefore had concerns about Mr Syson’s credibility and reliability.

e. In relation to Mr Flynn:

A. He is a professional engineer, with an impressive and varied curriculum vitae. I will not replicate his resume here, but it includes formal university and other training, along with extensive work experience, in a wide range of engineering disciplines; e.g., mechanical systems, robotics, construction, and mechanical/industrial practices. In relation to roofing practices and standards:

1. He has worked as an installer and general contractor, in relation to various types of residential and commercial roofing, including the installation of steel roofs and siding, in turn including occasional purchase and manufacture of certain metal components for roofing;

2. He has remained involved in roofing-related issues through involvement in the constructing and insurance industry; e.g., dealing with problems and roofing failures;

3. For approximately 10-12 years, he has acted as a consultant to a company called “Steel Tile”; a company which, he feels, manufactures a roofing product very similar to that of LER;

4. He is qualified as a structural expert, and well as being certified in mould remediation assessment and testing by at least two professional organizations; and

5. He routinely acts as a Building Code consultant for cities, townships, companies and private residence owners.

B. In the circumstances, (including full compliance with Rule 53.03, involving Mr Flynn’s tendering of an appropriate expert report and completion of the required Form 53 acknowledging his duty to the court), I had no difficulty finding that Mr Flynn was qualified to provide expert opinion evidence in relation to this matter. Without limiting the generality of the foregoing, by virtue of his training and experience, he certainly was possessed of relevant knowledge and understanding superior to the trier of fact in relation to the issues raised by this litigation.

C. I also had no reason to doubt that, during the course of his testimony, Mr Flynn was doing his best to be honest and helpful in relation to the opinion evidence he was offering for my assistance.

D. There nevertheless were various reasons why I felt Mr Flynn’s evidence was not as helpful or persuasive in the current circumstances as it might have been, and why I have felt it preferable to accept the competing testimony of witnesses called by LER in many respects. Without limiting the generality of the foregoing:

1. The very breadth of Mr Flynn’s wide-ranging experience and ongoing involvement in multiple engineering disciplines and different types of roofing inherently undermines, I think, any conclusion that he specializes in metal roof design and construction. While his training and experience in that regard unquestionably are superior to that of the trier, I respectfully think there is reason to question whether his knowledge is superior to that of persons who have worked on nothing but metal roof design, manufacturer and/or installation for decades. In my view, a person with direct “hands on” experience involving hundreds or thousands of such metal roof installations, (particularly during the apparently significant expansion of such installations in relation to residential housing over the past 10-15 years), is likely to have a more accurate understanding of industry practices and standards when it comes to determining what is and is not necessary to ensure a metal roof that functions properly for its intended purpose.

2. While Mr Flynn opined that LER manufactured a “similar” or “similar-looking” product to that manufactured by Steel Tile, he readily acknowledged that he had never installed a metal roof manufactured by LER, had never before inspected a metal roof manufactured by LER, and claimed familiarity with LER’s bravo steel roof panels and their method of installation primarily on the basis of his review of “literature put out by” LER; i.e., the document at Tab 15 of Exhibit 2, (discussed below), which he characterized as a “manual” or “installation manual” applicable to the roof installed on Mr Syson’s home. Many of Mr Flynn’s opinions, suggesting deficiencies in the work done by LER in relation to Mr Syson’s home, correspondingly were based on suggested failures by LER to follow its own supposedly mandated standards in that regard.

3. For the reasons outlined below, I was not persuaded that the literature relied upon by Mr Flynn had that intention or effect.

4. In the course of Mr Flynn’s testimony, it became clear to me that he frankly lacked knowledge and understanding in relation to particular but important design features of the LER roofing system. For example, he seemed unfamiliar with the particular “starter” system developed and employed by LER, which is purposely designed to slow water descending from higher panels and direct it into eaves-troughing, and has a hidden “kick” or raised portion, (not visible after the installation of supervening sheet panels), that inhibits/prevents potentially destructive water back up and ice-damming. While Mr Flynn had familiarity with semi-permeable membranes, he also understandably was not familiar with the special membrane developed for use by LER in its roof installation. Moreover, at times it seemed to me that Mr Flynn had proceeded on a possible misunderstanding of the underlying configuration of strapping used to support the metal roof applied to Mr Syson’s home.

5. Mr Flynn inherently was working at somewhat of a disadvantage, insofar as he carried out a non-invasive inspection of the metal roof installed on Mr Syson’s home, and did so without physically ascending onto the roof; i.e., restricting his observations to what could be seen from the perimeter. While he made an effort to inspect the roof from the inside, restricted attic space limited his ability to inspect ridge venting in the many lower “hip” ridges of Mr Syson’s roof. In the circumstances, Mr Flynn inherently was at a disadvantage to witnesses, such as Mr Friesen and Mr Devost, as to what was done and/or inspected and corrected while they were on the roof itself, and/or before certain work, (e.g., underlying starters, valleys, flashings, expandable tape and caulking), effectively was concealed from view by the application/installation of additional material.

[9] Numerous exhibits were tendered during the course of the trial, and I have regard to all of them.

[10] In my view, however, the most contentious exhibit, (in terms of its suggested relevance and significance), and one requiring particular comment, was a document found at Tab 15 of the “Joint Document Brief” marked as Exhibit 2 in the trial. In that regard:

a. The 23-page document, formally published by LER and entitled “Metal Roof Installation”, admittedly was prepared by Mr Malec, and available on LER’s website at the time of Mr Syson’s metal roof installation.

b. Mr Syson, through his expert Mr Flynn and counsel, placed great reliance on the document as support for many of the deficiencies alleged in relation to the metal roof installed by LER on Mr Syson’s home. For example, the document repeatedly was characterized by Mr Flynn and Mr Syson’s counsel as a “manual” or “installation manual” that should have been followed when Mr Syson’s metal roof was being installed, such that demonstrable deviations from the “manual” should be regarded as deficiencies requiring remediation.

c. However, the three witnesses called by LER made it quite clear that the document in question was never intended to be used in the manner suggested; i.e., as some form of instruction manual to be followed in relation to all types of roofs manufactured and installed by LER. In that regard:

A. In the course of his testimony, Mr Friesen readily acknowledged that he was familiar with the relevant document, as well as a “Specification Data Sheet” found at Tab 14 of Exhibit 2, having been provided with copies of both documents when he first started doing work for LER. He confirmed that he had reviewed the document many times in the past. However:

1. Mr Friesen emphasized that his knowledge of how to install a metal roof like the one on Mr Syson’s house actually came primarily from “hands on” training and experience.

2. In that regard, Mr Friesen not only had prior training and experience working on other metal roofing systems, (acquired during his employment by another steel roofing company operated by John Thiessen), but was provided with additional training in relation to LER roofs by Martin Razpla, an experienced master installer already working for LER. In particular, when Mr Friesen began installing LER metal roofs, Mr Razpla initially worked with Mr Friesen on a number of roofs before Mr Friesen began installing LER roofs without such supervision.

3. Mr Friesen testified that the document at Tab 15 of Exhibit 2 might be appropriate for “a very plain roof”, but could not possibly apply to every single roof. In that regard, Mr Friesen emphasized that “every single roof was different”, and that installers accordingly are obliged to adapt their methods to the particular kind of roof with which they are working. For example, Mr Syson’s roof was not a “very plain roof”, but one that had “many valleys and hips”, and he and his installers accordingly “had to work with what [they] had”.

4. Mr Friesen emphasized that the practice routinely employed in relation to installation of metal roofs such as the one received by Mr Syson accordingly differs in many respects from comments in the document; e.g., in relation to such matters as where the lower edge of metal roof sheets should be placed in relation to eaves, (which differed for roofs with eavestroughs as opposed to the more simple roof depicted and addressed in the document), and the particular screw pattern to be used when fastening sheeting to the roof system – in respect of which Mr Friesen had been trained by Mr Razpla, from the outset of his work on LER metal roof installations, to employ a quite different screw pattern.

5. Mr Friesen had a firm understanding that the document at Tab 15 of Exhibit was certainly not a complete code for metal roof installation. To the contrary, he understood there “definitely” were correct methods for performing such installations other than those described in the document, and that the document was not only “simply a guide”, but “a simple guide” relating to “a simple installation”, in relation to a “very simple” roof like something one might see on a shed. Mr Friesen was adamant that it would be inappropriate to mirror the installation depicted in the document in relation to a roof such as that of Mr Syson, which had an eavestrough system and employed LER’s “starter” system.

B. In his independent testimony, Mr Devost confirmed that he was familiar with the document at Tab 15 of Exhibit 2, and had seen it in the past, but it generally was regarded as no more than a “guideline”, which contained “a lot of things” that were “not something that we use out in the field”, and which did not require compliance with the document. In particular, the document was not regarded as a collection of inflexible rules, but allowed for considerable deviations in practice. In that regard:

1. He noted that the document was not current and required revision, insofar as it did not reflect changes made in practice to improve LER products and their installation.

2. He noted that some of the suggestions in the document, (e.g., use of an indicated screw pattern), were things he had never seen in practice with LER or any other metal roofing company. To the contrary, in Mr Devost’s experience, the practices actually used in the field by LER, which differed from those in the document, were similar to those used by all other metal roofing companies. The document simply was not an accurate reflection of industry standards that were followed in practice.

3. He did not think it likely that advance approval would be required to deviate from most of the “guidelines” set forth in the document.

4. He emphasized that there was not any single way of properly installing a metal roof, and that the real concern was that it functioned properly.

C. As for Mr Malec, who confirmed in his testimony that he was the person who created the document at Tab 15 of Exhibit 2:

1. While he acknowledged that training of those installing LER roofs included some reference to certain portions of the document, to provide installers with some indication of LER’s expectations in relation to certain matters, (e.g., the manner in which LER applied strapping and snow guards), Mr Malec stressed that most LER installer training is done “right on the job site”; i.e., through hands-on demonstration and verbal instruction indicating how LER roofs of various types were to be properly installed, following LER’s established procedures.

2. Mr Malec categorically denied that the document was ever intended to be any kind of manual for the installation of metal roofs supplied by LER. To the contrary, Mr Malec emphasized that the document was generic and “completely incomprehensive”, and designed to provide only very general information for the public and those interested in metal roofing; e.g., to help promote an understanding of what metal roofing generally looked like. It did so through use of “super broad” and “super basic” guidance and work instructions for a very simple project, such as the roof of a shed or smoke house having no eavestrough system.

3. Mr Malec was similarly emphatic that the document was never intended to suggest that all metal roofing done by LER’s installers always had to be completed in accordance with the document. Any such suggestion was entirely unrealistic, having regard to the wide variety of different methods of installation needed to address the wide variety and combination of variables, (e.g., configuration, pitch, style and eavestrough systems or lack thereof), encountered in relation to individual roofs. As Mr Malec put it, the document included “one percent of what you need to know” to properly install metal roofing, and was certainly not designed to be any kind of “step-by-step” work instruction indicating how all such work should be performed. In his words, one would have to be “completely nuts” to use the document as some form of instruction applicable to installation of a complicated roof.

4. Without limiting the generality of the foregoing, Mr Malec was emphatic that the guidance and work instructions provided in the document were never intended to be used in relation to a structure that had an eavestrough system.

5. For similar but broader reasons, Mr Malec confirmed the document was never intended to suggest that compliance with any installation method suggested by the document was required to ensure warranty coverage. Without limiting the generality of the foregoing, Mr Malec emphasized, (and I accept), that LER never intended to extend warranties for installation work, (as opposed to warranties extended in relation to its products), performed by anyone other than its own installers.

d. On balance, I am not persuaded that the document at Tab 15 of Exhibit 2 had the significance attributed to it by Mr Flynn or Mr Syson’s counsel. Without limiting the generality of the foregoing, I was impressed by the more independent testimony of Mr Friesen and Mr Devost confirming that the document was never regarded as a binding installation manual capable of application to all LER roof installations. Moreover, it seems clear to me, from the content of the document, that the sort of installation it describes was indeed intended to be a simple illustration, and not something capable of application, or expected to apply, to all roofing installed by LER, regardless of individual roof complexities or variations, such as the presence of an eavestrough system.

Issues in dispute

[11] I turn next to the particular issues the parties have asked me to consider and resolve.

[12] In that regard, I note at the outset that many of the issues are intertwined, insofar as the answer to some of the particular questions posed depends, in whole or in part, on the answer to one or more of the other questions. Rather than engage in unnecessary repetition, I will indicate where cross-referencing is required.

[13] I also note that, while I have regard to all of the evidence, I do not intend to comment exhaustively on all the considerable evidence I received in relation to each issue, having regard to the number of issues that need to be addressed. I instead intend to focus on the evidence I found most persuasive in making my required decisions.

VALIDITY OF CONSTRUCTION LIEN

[14] Is LER entitled to a lien on the property? [Issue A(a)]

a. I note at the outset of this particular discussion that there was no dispute that the parties’ disagreement, insofar as it related to the lien registered by LER, was to be governed by the provisions of the Construction Lien Act, supra, as they stood before that legislation was amended and transformed into the Construction Act, R.S.O. 1990, c.C30.[^8]

b. Pursuant to s.14(1) of the Construction Lien Act, supra, a “person who supplies services or materials to an improvement for an owner … has a lien upon the interest of the owner in the premises improved for the price of those services or materials”. In that regard, I note that the section confirms the existence of such a lien once the conditions therein exist, and that those conditions do not include additional matters that might have been required for the creation of a lien; e.g., completion or substantial completion of a contract,[^9] or the rendering of any invoice, whether interim or final.

c. Pursuant to the definitions set forth in s.1(1) of the Construction Lien Act, supra:

A. The phrase “services or materials” includes both services and materials.

B. The “supply of services” includes “any work done or service performed upon or in respect of an improvement”.

C. The term “materials” includes “every kind of movable property … that becomes, or is intended to become, part of the improvement, or that is used directly in the making of the improvement, or that is used to facilitate directly the making of the improvement”.

D. The term “improvement” includes, in respect of any land, “any alteration, addition or capital repair to the land”, and “any construction, erection or installation on the land, including the installation of … mechanical … or other equipment on … any building, structure or works on the land that is essential to the normal or intended use of the land, building, structure or works”.

E. “land” includes “any building, structure or works affixed to the land, or an appurtenance to any of them, but does not include the improvement”.

F. The term “owner” includes “any person … having an interest in a premises at whose request”, and “upon whose credit”, or “on whose behalf”, or “with whose privity or consent”, or “for whose direct benefit”, an “improvement is made to the premises”.

G. The term “premises” includes “the improvement”, “all materials supplied to the improvement”, and “the land occupied by the improvement, or enjoyed therewith, or the land upon or in respect of which the improvement was done or made”

d. In this case, I think the following findings and conclusions are warranted, based on the evidence before me:

A. Installation of a steel roof on the residence located at 55 Ambleside Drive, in the city of London, constituted an “improvement” within the meaning of the Construction Lien Act, supra. Although Mr Syson subjectively may not regard what he received from LER as an “improvement”, (having regard to his various stated complaints and concerns), the metal roof installed by LER unquestionably was, at the very least, an “alteration” or “addition” to the “land”; i.e., an alteration or addition to a building affixed to the land, or an appurtenance to that building.

B. LER, through its employees and subcontractors, indisputably provided work, and therefore “services”, in relation to that “improvement”.

C. LER also clearly supplied the components of the metal roof itself, (e.g., movable sheets, caps, valleys, flashings and fasteners), and therefore “material”, to that “improvement”.

D. According to the current title searched that was marked as Exhibit 1 in the trial, Mr Syson has a registered interest in the property known by its municipal address as 55 Ambleside Drive, in the city of London, and the “improvement” made to that property by LER, at a minimum, was done with his consent. Mr Syson accordingly was an “owner”, within the meaning of the legislation.

E. Pursuant to s.14(1) of the Construction Lien Act, supra, LER accordingly was a corporate person who supplied services and materials to an improvement for Mr Syson as the owner of 55 Ambleside Drive, in the City of London, and LER accordingly was entitled to a lien upon Mr Syson’s interest, in those improved premises, “for the price of those services or materials”.

e. As noted above, the statement of agreed facts and issues filed by the parties at the outset of trial indicates and confirms that the lien registered by LER was perfected, and that the timeliness of the lien is not disputed by Mr Syson. In other words, there apparently is no dispute that LER registered/preserved and perfected its lien in a timely way, in accordance with the requirements of sections 34 and 36 of the Construction Lien Act, supra.[^10]

f. Although it may be improper to register a lien for the full price of completing a contract when a contractor has abandoned a job knowing it to be substantially incomplete,[^11] I am not satisfied, for the reasons outlined below, that was the case in this instance.

g. LER accordingly was and is entitled to a lien on the property for the price of the services and materials it supplied, to the extent that price remains unpaid.[^12]

[15] If LER is entitled to a lien on the property, what is the value of the lien? [Issue A(b)]

a. Again, pursuant to s.14(1) of the Construction Lien Act, supra, LER was entitled to “a lien upon the interest of the owner in the premises improved for the price of those services or materials”. [Emphasis added.]

b. Pursuant to the definition set forth in s.1(1) of the Construction Lien Act, supra, “price”, in this context, means “the contract or subcontract price … agreed upon between the parties, or … where no specific price has been agreed upon between them, the actual value of the services or materials that have been supplied to the improvement under the contract or subcontract”.

c. In this case, there is no dispute that the base contract agreed upon between the parties, (i.e., reflected in the “Purchase Agreement” signed by Mr Syson on January 16, 2013), was a fixed price contract, whereby LER agreed to furnish all materials and labour to complete installation of the metal roof as stipulated, (including but not limited to all strapping materials, fasteners, steel panels, mouldings, flashings and snow guards as required), in exchange for payment of a “Total” price of $20,000.[^13]

d. There is also no dispute that Mr Syson paid LER the sum of $10,000, via two separate $5,000 payments, (the initial down payment Mr Syson supplied to Mr Malec on or about January 17, 2013, and a further payment Mr Syson supplied to Mr Malec on or about February 25, 2013), which would reduce the price ostensibly still owing on the base contract from $20,000 to $10,000.

e. The real dispute between the parties, in terms of the proper value of the lien LER should have registered against Mr Syson’s property, is whether the total “price” owed by Mr Syson to LER was augmented by a binding supplementary oral contract between the parties, whereby Mr Syson agreed to pay LER a further $5,000, (i.e., in addition to the $20,000 he already was contractually bound to pay pursuant to the base contract), for further work to be done by LER on the “whiskers” or “returns” of Mr Syson’s house at 55 Ambleside Drive. In particular:

A. If there was such an oral but binding supplementary contract between the parties relating to further work done on the whiskers/returns of the house, the total agreed price of the two contracts came to $25,000, in respect of which Mr Syson had paid only $10,000, such that the unpaid agreed price to be reflected in the lien came to $15,000; i.e., the amount of the lien registered by LER against title to the property.

B. If there was no such oral but binding supplementary contract between the parties relating to further work done on the “whiskers” of the house, (e.g., because further work done on the “whiskers” by LER formed part of the work to be done properly pursuant to the base contract, or because LER effectively agreed to provide such work as an “extra” component of the base contract without further charge), then the total agreed price of the single base contract was not increased or supplemented by the price of any supplemental agreement, and remained $20,000, in respect of which Mr Syson had paid only $10,000. In that case, the unpaid agreed price to be reflected in any lien registered by LER against title to the property should have been limited to $10,000.

f. For the reasons outlined below, in relation to Issue B(d), I have found that the parties did not enter into any binding oral contract for additional services to be performed by LER in relation to the whiskers/returns of Mr Syson’s house on Ambleside Drive. The value of the lien registered by LER against title to Mr Syson’s property accordingly should have been in the amount of $10,000, (i.e., the $20,000 price actually agreed upon by the parties, less the $10,000 admittedly paid by Mr Syson towards that agreed price), rather than the amount of $15,000 indicated in the lien LER actually registered.

THE ROOFING CONTRACT

[16] Did LER complete installation of the roof in accordance with the terms of the written contract? [Issue B(c)]

a. I start by noting that the wording of the issue is problematic, insofar as it compounds a question about completion with additional wording that might, on its face at least, raise additional questions about whether the manner of completion may have been problematic, insofar as there are disputes about whether the quality of materials supplied and services rendered met implicit if not explicit standards required by the parties’ contract. As the parties apparently intended to focus on the latter matters in the further issues noted below, I will focus for present purposes on the question of completion.

b. In a “fixed priced contract” or “stipulated price contract”, the contractor is expected to supply all materials, labour and supervision necessary to complete the work, and to be paid the stipulated price. In other words, the owner is entitled to expect that all of the work defined by the contract will be completed for the agreed upon price, and the contractor is entitled to expect it will receive that price.[^14]

c. A contractor is not, in the absence of some express provision in the contract, entitled to payment until substantial completion of the work. However, on completion, the owner must pay the agreed price. In the case of defects in the work, the owner may have the right to set up a counterclaim for damages to remedy defective work, but he or she cannot escape liability for payment of the price agreed upon.[^15]

d. Completing a construction project in an allegedly improper or deficient manner accordingly is not the same thing as failing to complete the project. The two concepts are conceptually distinct. A defendant “may deliver an improperly constructed home not in accordance with the plans and specification, or may leave the job unfinished, or both”.[^16]

e. Although performance is a condition precedent to payment, minor defects in completion will not prevent a contractor from establishing that it has in substance fulfilled the condition precedent, and what is generally known as “substantial completion” is sufficient compliance with the obligation to complete.[^17]

f. Whether or not there has been “substantial performance” or “substantial completion” of a contract, entitling a contractor to payment, is in each case a question of fact which must be determined in light of the terms of the contract. One must look to the nature of the work involved, and make a reasonable appraisal of the work already carried out. It is virtually impossible to lay down any general principles for determining whether or not a particular contract has been substantially completed, and each case must be determined on its own facts.[^18]

g. In this case:

A. The written contract of the parties, (i.e., the “Purchase Agreement” executed on January 16, 2013), required LEF to provide a “Bravo Roof” of a specified colour, (“Nova Copper”), “over one layer of shingles”, (i.e., the existing roof covering on Mr Syson’s house), and to “furnish all materials and labour to complete the installation as stipulated, including but not limited to all strapping materials, fasteners, steel panels, mouldings, flashings and snow guards as required”. LEF’s obligations in that regard were qualified by the provisions of the “Disclaimer” and “Terms & Conditions of Sale” on the reverse side of the contract.[^19]

B. Amongst other things, those additional “Terms and Conditions” stipulated that LER would provide a warranty “upon receipt of full payment”.[^20]

C. In my view, this is not a case where the contractor obviously failed to complete contemplated work; e.g., by painting only half the surfaces which were to be painted, or leaving a contemplated residence without finished walls to make it habitable. There is no visible portion of Mr Syson’s roof that was left obviously unaddressed or uncovered by LEF, and I think the evidence makes it reasonably clear that LEF applied some degree of strapping, fasteners, steel panels, mouldings and flashings to all areas of Mr Syson’s roof, and a noticeable number of snow guards.

D. In his testimony, Mr Friesen confirmed that all the indicated components required by the roofing contract had been installed over the course of approximately one and a half weeks, starting in late January of 2013. He was adamant that the required roofing installation had been completed during that initial work period, in accordance with the contract and all indicated specifications for that type of roof, and he personally was satisfied with the resulting installation. Mr Friesen acknowledged that further work then was done to modify work originally done on the “whiskers” or “returns” of the home, (e.g., during three further attendances at Mr Syson’s property in or around February and/or March of 2013), in an effort to please Mr Syson. However, performance of such additional work did not alter Mr Friesen’s view that installation of the metal roof contemplated by the contract between LER and Mr Syson had been completed.

E. In cross-examination, Mr Syson himself agreed and confirmed that strapping, fasteners, steel panels, flashings and snow guards had all been installed by LER – although he questioned whether additional snow guards should have been applied in certain areas.

F. In his independent testimony, (which I found persuasive on this point), Mr Devost had no doubt that installers had finished installing the metal roof on Mr Syson’s home when Mr Devost was sent to inspect the completed installation. In that regard:

1. It was the job of Mr Devost and Martin Razpla, (the other master installer employed by LER with whom Mr Devost was working), to ensure that everything on the roof was tight, fastened properly, straight and functioning properly.

2. Mr Devost testified that he was generally satisfied, (after straightening a ridge cap and possibly tightening a couple of flashings), that everything was properly finished and in working order, in relation to Mr Syson’s roof.

3. Although the roof had been completed, Mr Devost described how certain work on the whiskers or returns was done for entirely cosmetic reasons; i.e., because the panels originally used looked “a little too bulky for something so small”, such that the end result “just didn’t look right”. In the result, it was decided that the original “Bravo” profile of steel sheeting used on most of the roof would be removed, and replaced with flat stock and decorative strips. He himself performed the first such adjustment, on one of the whiskers/returns of Mr Syson’s house, and then left Mr Friesen to do the remainder.

4. Mr Devost confirmed that the adjustments he made to aspects of the general roofing system, (e.g., to the ridge cap and flashings), and made or directed in relation to the whiskers/returns, were done for purely aesthetic reasons, and were in no way changes necessary for the proper functioning and performance of the roofing system; i.e., in terms of the roofing system serving its intended purpose of protecting Mr Syson’s home.

G. There was nothing in the evidence to suggest that the metal roof supplied to Mr Syson was not “Bravo steel”, with a “Nova Copper” colour.

H. From my objective standpoint, this is not a situation where the contemplated work was not completed, but a situation where an owner takes issue with the quality of the completed work.

h. For the above reasons, I find that LER substantially completed installation of the metal roof contemplated by the parties’ written contract.

[17] Did the parties enter in a binding oral contract for additional services to the roof “whiskers” to be rendered by LER to Mr Syson? If so, what were the terms of the contract? [Issue B(d)]

a. As noted above, LER alleges that, in addition to the base contract requiring LER to install the stipulated steel roof for a price of $20,000, LER and Mr Syson entered into a further binding oral contract whereby LER would provide additional material and services in relation to the whiskers/returns of the steel roof on Mr Syson’s house at Ambleside Drive.[^21] Mr Syson firmly denies the existence of any such supplemental or additional contract, and says any additional work done by LER in relation to the whiskers/returns was required by the original base contract and covered by that contract’s stipulated purchase price.

b. General principles relevant to such determinations include the following:

A. It is well established that, in a lump sum contract, the contractor is entitled to the whole of the price, but to no more, irrespective of whether the work actually carried out is more or less than anticipated. However, “extras” to the contract must be paid for, in addition to the original contract price.[^22]

B. In particular, a contractor generally is obliged to perform only the work included in its contract. Unless the original contract includes terms providing the owner with the right to order extra work, (usually coupled with provisions specifying some method of payment for such work), there must be a new agreement between the owner and the contractor covering the performance of and payment for any work not comprised in the original contract. Such an agreement may be an express contract, or it may be an implied contract to pay for extra work done at the request of the owner and accepted by him or her. If no price is fixed for the performance of such extra work, the court will imply a promise to pay a reasonable amount on a quantum meruit basis.[^23]

C. Whether a particular item of work is an extra or not must be determined by reference to the terms of the contract, the nature of the work, and the surrounding circumstances. Generally:

a. Where work done by a contractor falls within the original scope of a fixed price contract, the work is not an “extra”, and the contractor is not entitled to charge an additional sum for its execution.

b. When a contractor performs work or supplies materials not called for by the contract without instructions express or implied from the owner, or the consent of the owner, it is not entitled to charge for such additional work or materials as an “extra”.

c. However, when the contractor performs work or supplies materials not called for by the contract, on the express or implied instructions of the owner, it is entitled to charge for additional work or materials as an “extra”.

d. What amounts to instructions from the owner depends on all the circumstances relating to each item.

e. In some cases, an original contract may require certain formalities, (such as a written order), in relation to requests for extras as a condition precedent for extra payment in relation to such work. However, even in such cases, where the owner has acquiesced in the provision of extras, he or she may be found to have made an implied promise to pay for them.[^24]

D. Where additional work by a party is occasioned and required by the need to address work done improperly by that party, the party generally should not be entitled to the cost of performing such additional work.[^25]

E. Parties also are free to negotiate and reach a binding oral agreement in relation to certain construction work. However, the basic contractual principles of offer and acceptance, and certainty of terms, are applicable to situations of an alleged oral contract. The existence of an enforceable oral contract must be proved by the party alleging its existence. In that regard, the test is not what an individual party subjectively believed or understood to have been intended, but whether it has been established that an objective reasonable bystander would have understood that both parties were intending to contract, and consenting to identical terms.[^26]

c. In this case, there effectively was no dispute that the work done to install metal roofing and finishes on the whiskers/returns on Mr Syson’s roof was the subject of repeated effort and attention – although how that came about was the subject of inconsistent testimony. In that regard:

A. Mr Friesen described, at some length, how the work essentially was initially completed, and then revisited twice. In particular:

1. During initial and completion of the roof installation, the six whiskers/returns on Mr Syson’s house initially were finished using the same contoured metal sheeting used in relation to the rest of the roof. Mr Friesen says he and his installation team received no specific direction from LER or Mr Syson in that regard; e.g., by preparing any sample or “mock up” of such a finished whisker/return for approval by Mr Syson. They simply completed whiskers/returns in the “regular” manner they employed when doing such work.

2. Mr Friesen then learned there were complaints about the finished whiskers/returns that required correction, and he was directed to make changes in that regard. Mr Friesen was not privy to any discussions between Mr Syson and Mr Malec relating to the whiskers/returns, and initially indicated a belief that the direction to make the changes somehow “came from Joe Malec”. However, in cross-examination, he recalled that Mr Devost had attended the property, (when Mr Friesen returned to do further work on the whiskers/returns), to give him the idea of what further work needed to be done on the whiskers/returns.

3. During a second effort, the original contoured metal surface of the whiskers/returns was removed and replaced by metal having a flat surface; i.e., without the contoured “ripples” in the original metal sheeting applied to the remainder of the roof. In the process, all of the corresponding gable trim of the whiskers had to be removed and replaced as well. Visible caulking used in relation to the original flashings for the whiskers/returns also was removed, with care being taken to ensure that caulking applied to the replacement flashings was installed and concealed behind those flashings. Although he recalled Mr Devost somehow giving him the idea of what further work should be done on the whiskers/returns, Mr Friesen also believed that he generally completed such work on his own, and that it took him approximately 30-45 minutes to finish that work in relation to each of the whiskers/returns.

4. During a third effort, decorative metal strips, caps and ridging, (which Mr Friesen also described as “riblets”), were then added to that flat surface of the whiskers/returns.

5. Mr Friesen said that he was not paid anything, beyond his normal rate of compensation for installing the roof, to complete that additional work on the whiskers/returns.

B. Mr Devost testified that, when he was sent to do the final inspection of Mr Syson’s roof, he had been provided with some sort of prior indication, (which likely came from Mr Malec), that there was a cosmetic issue having something to do with the returns or whiskers, which Mr Devost was to look at while doing his final inspection. In that regard:

1. Mr Devost says that, when he thereafter looked at the returns/whiskers, during the course of his attendance at Mr Syson’s property, he felt they were “bulky” and not up to LER’s aesthetic standards.

2. Mr Devost says he voiced his opinion in that regard to Mr Malec, (as he felt he needed approval from Mr Malec to make the changes to the whiskers/returns that he was recommending), and that he probably did so by phone on the day of his attendance at Mr Syson’s property.

3. Mr Devost says that he also must have received approval from Mr Malec that day to go ahead with the recommended changes, as he then proceeded, (as noted above), to personally do the remedial work on one whisker/return, leaving the remainder to be done by Mr Friesen.

4. Mr Devost had no recollection whatsoever of ever meeting or speaking with Mr Syson, in relation to the returns/whiskers or otherwise, and frankly acknowledged that he would not have been able to identify Mr Syson prior to trial.

d. On behalf of LER, Mr Malec alleged, (and Mr Syson denied), that such additional work on the whiskers/returns was the subject of a binding oral agreement, obliging Mr Syson to pay an additional $5,000 for the material and services involved. In particular:

A. Mr Malec claimed that part of LER’s response to complaints expressed by Mr Syson was a personal attendance at the property by Mr Malec, during which he and Mr Syson walked around Mr Syson’s house, on the ground, looking at and discussing the roof.

B. In the course of that conversation, Mr Malec says, there was express discussion about the whiskers/returns, about Mr Syson’s desire for changes in that regard, (i.e., to “change the whole front”, as Mr Malec described it, because Mr Syson was not satisfied with the aesthetic look of the whiskers/returns), and about the cost of the labour and material that would be associated with making such changes.

C. Mr Malec says that he expressly told Mr Syson that there would be an “extra” cost for making such changes and that Mr Syson was “gonna get a bill for that”. In that regard, Mr Malec says he told Mr Syson it would not be a “cheap change”, because the material involved was very expensive and the original material could not be reused. In the course of his testimony in chief, Mr Malec said he also then told Mr Syson that the additional cost to him of having such work done would be “roughly … five, maybe seven thousand dollars”. In the course of cross-examination, Mr Malec acknowledged that the verbal agreement he allegedly reached with Mr Syson about the whiskers/returns “wasn’t precise” when it came to the relevant cost of the work, and his account of what he had said in that regard to Mr Syson changed again. For example, at one point during his cross-examination, Mr Malec said he told Mr Syson the cost would be “five, six thousand”. At another point, he claimed to have told Mr Syson the cost would be “probably five, six, seven grand”. At another point, he claimed to have indicated to Mr Syson that the cost was “gonna be labour and material”.

D. Mr Malec testified that he asked Mr Syson what he wanted to do in response to such indications, and that Mr Syson responded by saying: “This is what I want to do. Change it. Let’s get it right.”

e. In his testimony, Mr Syson denied the making of the additional agreement alleged by Mr Malec, on behalf of LER. In that regard:

A. Mr Syson says he actually saw and met with Mr Malec only three times: when the written contract between the parties was executed; when Mr Malec came by the property to collect a second $5,000 payment from Mr Syson; and a third and final occasion when Mr Malec demanded payment of the further $10,000 contemplated by the parties’ written contract.

B. Mr Syson says that, on the third occasion, he presented Mr Malec with a list of alleged deficiencies in the roof, and offered to walk Mr Malec around the house to discuss them further, but that Mr Malec simply ignored Mr Syson’s comments and offer in that regard. According to Mr Syson, when he then refused to make the additional final payment of $10,000 Mr Malec was demanding, until the indicated deficiencies had been addressed, Mr Malec left the property without any further discussion apart from Mr Malec indicating that he would see Mr Syson in court.

C. According to Mr Syson, he managed to speak with Mr Malec by telephone only twice after that third and final personal meeting between the two men; i.e., to reiterate the faults and deficiencies set out in his list, (including complaints relating to the whiskers/returns), and to indicate that he would pay the further $10,000 after those faults and deficiencies had been addressed, with Mr Malec responding by questioning why there was a problem if the roof was not leaking, and offering to remove all the metal work and replace it with shingles if Mr Syson paid a further $3,000. Mr Syson says Mr Malec thereafter refused to take any more calls from Mr Syson, or answer any of the numerous messages Mr Syson left with Mr Malec’s secretary.

D. Mr Syson says he never received any information about any representative of LER attending to carry out any remedial work on the property; i.e., in relation to the whiskers/returns or otherwise. To the contrary, he says Mr Malec never called or informed him that any changes were going to be made to the whiskers, what type of changes they would be, or what the replacement whiskers were going to look like. According to Mr Syson, he simply noticed, by looking at the whiskers, that changes had been made to them, and that the changes were not to his liking. He feels the whiskers/returns should have been left in the same style as the remainder of the roof.

E. Mr Syson says he also never had any conversation or discussions with Mr Malec or any other representative from LER, (during his third and final meeting with Mr Malec or otherwise), about any additional price or costs associated with the further work done in relation to the whiskers/returns. It was Mr Syson’s understanding that “all those repairs and refurbishing were included” in the total cost he originally had agreed to pay for the labour and work on his roof. He specifically denied that anyone had informed, advised or notified him that there would be an additional price of $5,000 charged for the further work done on the whiskers/returns.

F. Mr Syson also specifically denied that there had been any meeting, (as alleged and described by Mr Malec), wherein Mr Syson, Mr Malec and a female friend of Mr Syson had discussed the installation work originally done on the whiskers/returns, and agreed on its replacement. According to Mr Syson, the only such meeting between himself, Mr Malec and one of Mr Syson’s female friends occurred when the parties’ original written agreement was signed.

G. It was Mr Syson’s evidence that, after paying Mr Malec $10,000, and after completion of the further work done on the whiskers/returns, he was never asked to make a further payment of $15,000, (rather than a further payment of $10,000), until that request was made in the context of this litigation. He also says that he never received any invoice from LER prior to the commencement of this litigation.

f. As the party alleging and relying upon the existence of the alleged supplementary oral contract between LER and Mr Syson, LER has the burden of establishing such a binding oral agreement on the balance of probabilities, and in my view, it has failed to do so. My reasons in that regard include the following:

A. In my view, the evidence makes it abundantly clear that Mr Syson was determined to take a very careful and frugal approach to the installation of the contemplated metal roof on his home. He testified that he made a decision to replace his existing shingle roof and started making inquiries in that regard at the beginning of 2012, and there was no dispute that he thereafter initiated contact with LER representatives at a marketplace in east London. In search of a lower price, he also obtained at least two prior quotes from LER salesmen, (in March of 2012 and early January of 2013), before he eventually agreed to the contract with LER negotiated by Mr Malec and signed on January 16, 2013. In that regard, Mr Syson testified, and I accept, that the most important factor that prompted him to finally enter into a contract with LER “was the good price they offered”. As Mr Malec himself confirmed, (and Mr Syson did not dispute), the parties eventually were able to agree on a contract only because the direct involvement of Mr Malec, obviating the need for payment of a commission to a salesperson, made it possible for Mr Malec to offer the lower all-inclusive price of $20,000, which finally was agreeable to Mr Syson.

B. In his testimony, Mr Malec said that he found Mr Syson to be “elusive” and “wishy washy” during their initial meeting to discuss finalization of an agreement to install a metal roof on Mr Syson’s home. Because of that behaviour, and because Mr Malec was aware of the fact that Mr Syson already had obtained at least two and possibly three earlier quotes from LER salesmen that had not resulted in a binding agreement, Mr Malec testified that he “wanted to make sure everything was on paper” in his dealings with Mr Syson.

C. In the course of his testimony in chief, Mr Malec also indicated that it was his general practice to ensure that an obligation to perform “any additional extras”, beyond standard installation of a premium product roof, was documented; i.e., by writing any such obligation into LER’s contracts. In cross-examination, Mr Malec attempted to walk back that indication by suggesting that there were a good many verbal understandings between his sales personnel, installers and customers, and that Mr Syson was only the third or fourth customer in respect of whom a verbal agreement had not been kept. However, I thought Mr Malec’s initial indication about his preference for and insistence upon written contracts was more telling.

D. When describing his subsequent interactions with Mr Syson, Mr Malec also testified, (with obvious bitterness), that Mr Syson’s conduct had made it clear he was the type of difficult customer, occasionally encountered by Mr Malec over the years, who had a strong reluctance to part with any money for services rendered. In Mr Malec’s opinion, that was made clear by Mr Syson repeatedly offering numerous excuses for delayed payment, (e.g., snow preventing adequate inspection and/or travel arrangements), or otherwise ignoring LER’s attempts at communication and requests for payment.

E. Against that backdrop:

1. I find it extremely difficult to believe and accept that Mr Syson would have agreed to an additional $5,000 monetary obligation, (i.e., a full 25 percent of the originally agreed based contract price), in relation to the installation of what essentially were decorative or aesthetic features of the roof; features that really had nothing to do with the roof’s proper functioning in terms of a providing a reliable water/weather barrier for the top of Mr Syson’s home. My difficulty in that regard is compounded by the fact that Mr Syson already had declined to accept the earlier LER quote provided to him by Peter Olejnik; a quote whereby LER had offered to install a metal roof on Mr Syson’s home for a total price of $22,966.17.

2. I find it equally difficult to believe that Mr Malec would have agreed to embark on a supplementary binding contract with Mr Syson without making similar efforts to “make sure that everything was on paper”, as he says he was inclined to do.[^27]

F. I think it significant that, even according to Mr Malec’s own testimony, he and Mr Syson actually had not agreed on a specific price for the completion of additional work on the whiskers/returns. There was not certainty of contractual terms in that regard. In my view, that would have suggested, to an objective reasonable bystander, that Mr Malec and Mr Syson were not both intending to enter in a binding supplemental contract, or consenting to identical terms of that supposed contract.

G. I was impressed by the candid and generally independent testimony of Mr Devost, indicating that, prior to the additional work on the whiskers/returns being done, he felt the initial method employed to finish those areas of Mr Syson’s roof was cosmetically inappropriate and needed to be redone. In my view, that favours a conclusion that the additional work on the whiskers/returns was required, if only for cosmetic reasons, to address work initially done improperly by those working for LER. That in turn supports a finding that LER should not be entitled to the cost of performing such additional work.

H. In contrast, I found Mr Malec’s testimony in relation to this aspect of the case to be problematic in numerous ways. For example:

1. As noted above, Mr Malec’s indications concerning who was present during the conversation he and Mr Syson supposedly had about making alterations to the whiskers varied considerably and inconsistently during the course of his testimony, particularly after hearing Mr Friesen effectively contradict Mr Malec’s assertion that Mr Friesen was present when the additional oral agreement between LER and Mr Syson was made. In my view, Mr Friesen would have remembered being party to such a discussion.

2. Mr Malec also claimed to have told Mr Friesen, in relation to the extra work to be done in relation to the whiskers/returns, that Mr Malec would “cough up” some extra payment for the inconvenience, or provide Mr Friesen with another “nice job” to “make up the losses”. I think Mr Friesen would have remembered such a discussion when he was asked directly about such matters in cross-examination. He did not.

3. When attempting to justify the $5,000 additional cost of the work covered by the alleged supplementary oral contract, Mr Malec said he knew the work to be done on the whiskers/returns would be “roughly … around five grand” because, in addition to the cost of material, the cost of a crew attending to do that work would be approximately $3,000 per day, and the cost of dispatching members of LER’s service department, (e.g., Mr Devost), would be approximately $1,200 to $1,400 per day. In my view, however, such estimates were at odds with the testimony of Mr Friesen and Mr Devost indicating that one person was capable of doing the work on each whisker/return, and Mr Friesen’s testimony that completing the work took him no more than approximately 30 to 45 minutes for each of the six whiskers. In other words, the entirety of the work done to change the whiskers/returns was capable of being done by one person in approximately three to four-and-a-half hours.

4. The $15,000 invoice relied upon by LER makes reference only to Mr Syson’s initial down payment of $5,000, without mentioning Mr Syson’s acknowledged payment of a second $5,000 payment or any additional agreement on the part of Mr Syson to pay an additional $5,000 beyond the originally agreed price of $20,000. In other words, on its face, LER’s own underlying invoice supports the position of Mr Syson that the agreed total amount he was to pay LER was only $20,000, and not $25,000. In his testimony, Mr Malec sought to downplay the significance of the $20,000 figure on the invoice by making various alternative suggestions; e.g., that the invoice may have been issued before Mr Syson’s additional $5,000 payment and oral agreement to pay a further $5,000 on top of the initially agreed $20,000 price; that invoicing by LER was prepared by his secretary without his direct involvement – suggesting that his secretary had made errors in that regard; that there were perhaps four to five additional invoices that may have been sent to Mr Syson - although no such additional invoices were tendered in evidence, as I think they would have been had they existed and supported LER’s position; and that LER’s accounting department, when preparing to register a lien showing the $15,000 balance allegedly owed by Mr Syson, (in relation to the parties’ original written agreement and alleged supplementary oral contract), may have “backdated” the invoice artificially in an effort to protect the contemplated lien. I frankly did not find such explanations persuasive or convincing. Without limiting the generality of the foregoing, the invoice relied upon by LER in support of its claim and corresponding lien makes reference only to one “list price” and corresponding tax, (totalling $20,000), and only one $5,000 payment received from Mr Syson. In my view, had LER intended to justify a lien for $15,000 by reference to the total cost of two alleged contracts totalling $25,000, in respect of which $10,000 had been paid by Mr Syson, leaving an outstanding balance of $15,000, there should and would have been preparation, registration and production of an invoice making that clear.

5. As noted and emphasized by Mr Syson’s counsel, LER’s written response to Mr Syson’s complaint to the Better Business Bureau, ostensibly sent by Mr Malec as President of LER in June of 2013, (and therefore well after the time at which the parties are alleged to have entered into a binding oral agreement to have Mr Syson pay a further $5,000 in relation to the further work done to alter the whiskers/returns), contains no mention whatsoever of the alleged supplemental oral agreement. To the contrary, it makes reference only to the parties’ original written contract of January 16, 2013, in respect of which Mr Syson was to pay a total of $20,000, and provided an initial down payment of $5,000. When confronted with that correspondence in cross-examination, Mr Malec claimed that, although the correspondence was sent in his name, he actually did not prepare or even read it, as he: did not care or “give a damn” about the Better Business Bureau; told his secretary to “just write something up” in order to get the Bureau “off our back”; and thought the secretary, in drafting the response, probably had just pulled and relied on the original written contract with Mr Syson, without checking the money paid on account and without knowing of the further oral agreement between the parties. I did not find such explanations persuasive or convincing. As Mr Malec himself emphasized, he knew the matter already was “in litigation”, and I think it unlikely that he would have allowed a written statement of LER’s position vis-à-vis Mr Syson to go out, under his name, and in a context where the response almost certainly would be conveyed back to Mr Syson and his legal counsel, without ensuring that it was an accurate indication of LER’s stated legal position. Moreover, in the course of cross-examination, Mr Malec indicated that he had in fact provided the relevant secretary with a “rough” indication of what to say in the relevant response to the Better Business Bureau inquiry, and I find it hard to believe those “rough” instructions would not have included Mr Malec’s basic position on what Mr Syson had agreed to pay, and what Mr Syson instead had paid.

6. In my view, having regard to all such considerations, I think a sensible and more likely conclusion is that which Mr Syson’s counsel put to Mr Malec in cross-examination. In particular, I think there is reason to believe:

a. that LER filed a lien for $15,000 based on the price of $20,000 agreed upon in the parties’ original written contract, less the initial $5,000 down payment received from Mr Syson, but without taking into account the further $5,000 payment Mr Syson had made;

b. that Mr Malec and LER were reminded of the additional $5,000 payment made by Mr Syson when the handwritten receipt on Mr Malec’s business card, (supplied by Mr Malec to Mr Syson, and confirming LER’s receipt of a cumulative $10,000 from Mr Syson), was produced to Mr Malec during the course of this litigation; and

c. that Mr Malec then relied on the alleged existence of a further oral agreement as a belated justification for LER’s original assertion that Mr Syson still owed LER a further $15,000 in relation to the work done on Mr Syson’s roof.[^28]

g. For such reasons, I find that the parties did not enter in a binding oral contract for additional services, to be provided by LER, in relation to the whiskers/returns on Mr Syson’s roof. In particular, while further work unquestionably was done in that regard, in my view LER has not established to my satisfaction, on a balance of probabilities, the existence of a binding supplementary contract whereby Mr Syson was obliged to pay a further $5,000 for such work.

BREACH OF CONTRACT AND NEGLIGENCE IN MANUFACTURING AND INSTALLING ROOF

[18] Before turning to the extended sequence of specific issues the parties have identified for resolution in relation to alleged breach of contract and negligence, in relation to the manufacture and installation of Mr Syson’s roof, I pause to note some general principles relevant to such determinations. In my view, they include the following:

a. Performance of a construction project may simultaneously give rise to interlinked claims of negligence and breach of contract.[^29] To the extent work was not completed, or it was deficient, owners are entitled to damages.

b. A party performing construction work owes a duty, to the party requesting such work, to ensure that the care demonstrated in execution of the work does not fall below that expected of a reasonable performer of such work in all the circumstances. For example, the work performed by a party installing a roof must not fall below the standard of care of a reasonable roof installer in all the circumstances.[^30]

c. It has long been established, in the law of building contracts, that there is an implied condition that the builder will perform the contracted work in a good and workmanlike manner, (including the supply of good and proper materials as contracted for), reasonably fit for the purpose for which the services and material are supplied.[^31]

d. Among the many ways in which a construction contract may be breached are:

A. failure to supply goods and services required by the contract, or supplying items with deficiencies, including possible health hazards;

B. supplying goods or services that damage or diminish the value of real or personal property;

C. supplying goods or services that will have to be replaced; and/or

D. failure to clean and tidy a work site in the manner reasonably expected of a contractor at the end of an improvement/renovation.[^32]

e. The standard of good and workmanlike condition is not limited to the ultimate utility of the work undertaken. In other words, the fact that a constructed object is functional may not satisfy the terms of a building agreement when both utility and aesthetics were contemplated by the parties. In such situations, the contractor must exercise skill and care not only with respect to function but with respect to appearance as well. However, the degree to which a contractor must exercise care and skill in relation to aesthetic considerations must be determined on a case by case basis.[^33]

f. It is a matter of contract interpretation in every particular case whether or not an item of work or materials is within the scope of the contract, or whether the item of work and materials is a new matter for which the manufacturer, supplier or builder may be able to claim that he or she is entitled to an additional payment for doing such work.[^34]

[19] I also pause to note that the wording of issue “C(c)” and its numbered sub-paragraphs is somewhat ambiguous. In particular, the wording does not make it entirely clear whether:

a. the parties wanted the court to address the broad question of whether LER was negligent and/or breached its contract with Mr Syson, specifically addressing the issues raised in the numbered sub-paragraphs but leaving open the possibility of further negligence and/or breaches of contract not addressed by those specified issues; or

b. the parties intended to limit the possible grounds of negligence and/or breach of contract to those identified expressly in the numbered sub-paragraphs.

[20] The manner in which the case was presented and argued before me suggested the former approach, insofar as the parties were content to lead evidence and argue about whether LER may have been at fault for reasons other than those specified in the numbered sub-paragraphs. In particular, I was presented with evidence and argument about whether LER should be held responsible for:

a. failure to install adequate snow guards;

b. alleged damage to Mr Syson’s eavestroughs;

c. breaking of an ornamental statue that was positioned in Mr Syson’s left front yard; and/or

d. failure to clean up the worksite sufficiently, insofar as there were excess metal sheets and screws left at Mr Syson’s property.

[21] In an effort to resolve all aspect of the dispute between the parties, I will address those further issues as well.

[22] Was LER negligent in the work performed and did it breach its contract with Mr Syson? [Issue C(c)]

a. Does the roof system contain adequate ventilation? Does the roof contain inadequately secured material or parts? Is the roof connected properly? Does the roof contain uneven panelling? [Issue C(e)(i)]

A. The particular question of whether the roof system installed on Mr Syson’s house contains adequate ventilation occupied a considerable amount of time at trial. In that regard:

1. I think it important to emphasize, at the outset of my discussion in relation to roof ventilation, that the concept actually refers to two systems which are essentially independent:

a. ventilation of the metal roof itself, insofar as air between the metal roof and the underlying original roof, (covered with the old shingles, overlaid membrane and strapping supporting the metal roof), which is normally accomplished by openings near the bottom of the roofing panels and openings at the top of the roofing panels under the ridge caps, which allows the roof to “breath” constantly by the intake of air from the bottom area of the roof that is then “exhaled” near the top of the roof; and

b. ventilation of the attic space beneath the plywood covered by the metal roof, which is normally accomplished by air moving in through the soffits near the bottom of the roof and out through vents near the top of the roof, with LER almost always relying on “ridge venting”; i.e., a system of static venting which involves the creation of cut openings in the ridge areas of a roof, over which a semi-permeable membrane is laid, (allowing air to go out while preventing moisture from coming in), with slits made in the membrane in the location of the ridge cuts to create a “baffle” which opens and allows warming air to vent through the membrane when it rises.

2. Although Mr Flynn appeared to suggest that ice damming might interfere with the first system, (i.e., venting of the metal roof itself), I was not persuaded, on a balance of probabilities, that the evidence suggested any real problems or concerns as far as venting of the metal roof itself was concerned. Not only does the starter system developed by LER inhibit and generally prevent such ice damming, but the evidence I received suggested that venting of the metal roof itself was needed primarily to allow for the escape of air underneath the roof that might become excessively hot as a result of sunshine on the roof, especially during warm weather. Possible ice damming, (during winter conditions when the air between the metal roof and the underlying membrane, shingles and plywood below is likely to be cool or cold), would seem to pose little concern in that regard.

3. Most of the parties’ attention in relation to ventilation was instead focused on concerns relating to whether the attic space in Mr Syson’s house was properly ventilated. In that regard:

a. There was no dispute that an absence of adequate venting near the top of the roof would significantly restrict air flow through the attic area; e.g., by perhaps as much as 50 percent if there are no such vents, and the relevant space is ventilated solely through air moving in and out through the soffits at the lower end of the roof.

b. There also appeared to be no dispute that inadequate attic ventilation could result in the development of numerous problems over time. For example:

(a) Mr Flynn emphasized that cutting off the flow of attic ventilation would create condensation problems, (as a result of trapped moisture escaping from the dwelling interior below), in turn leading to water damage, reduced insulation effectiveness, greater heat loss and moisture problems, in turn leading to deterioration of the roof’s structure, (e.g., plywood, rafters, trusses, etc.), deterioration of insulation, and the spread of mould within the attic.

(b) Mr Friesen agreed in cross-examination that an absence of proper ventilation, (e.g., owing to the absence of appropriate ridge venting), could lead to problems such as moisture and condensation over time.

c. In their respective testimony, Mr Friesen and Mr Flynn agreed that attic spaces needed to be ventilated with one square foot of ventilation opening per 300 square feet of floor area.

d. In his testimony, Mr Malec adopted a similar position; e.g., confirming a “general rule of thumb”, (mentioned in the document at Tab 15 of Exhibit 2), that attic venting generally requires at least one square foot of vent space for every 150 to 300 square feet of attic being ventilated. In that regard, he noted that indication, and LER’s specification data sheet, were in compliance with s.9.19.1.2 of Ontario’s Building Code, specifying that vent area generally should be not less than 1/300 of the insulated ceiling area.

e. Mr Malec also spent considerable time, during his testimony, explaining his calculation of the ridge vent openings required to provide adequate ventilation for Mr Syson’s attic, (e.g., using a satellite photo of Mr Syson’s roof and further roof dimension information provided by Mr Friesen), and why opening of all the ridges on Mr Syson’s roof actually would create ventilation exceeding – by as much as two or three times - the requirements of the Building Code.

4. Considerable attention therefore was devoted to the issue of whether ridge vents had been cut adequately or at all in the roof plywood of Mr Syson’s house, and/or whether such ridge vents had their corresponding membrane areas, overlying such ridge cuts, properly opened by the cutting of appropriate slits in the membrane. In that regard:

a. Once again citing and relying upon passages from the document at Tab 15 of Exhibit 2, (which he once again characterized as an installation manual), Mr Flynn opined that proper ventilation of the attic space required ridges of the house to be “cut back” so as to create a gap with a width of approximately four inches or more. In support of his argument that the attic space had not been properly ventilated, Mr Flynn relied on his memory and photographs taken during his inspection in support of his view:

(a) that some ridge areas, (e.g., the peak ridge of Mr Syson’s roof, the interior of which was said to be depicted in “Photograph 10” of his report), had not been cut at all;

(b) that some cut ridges, (e.g., as depicted in “Photograph 12” of Mr Flynn’s report), had not been opened or “cut back” widely enough from ridges, so as to create a gap of at least four inches in conformity with the document Mr Flynn again characterized as LER’s installation instructions; and

(c) that areas of the membrane visible through admittedly cut ridges in Mr Syson’s house did not appear to have been opened.[^35]

b. For their part, Mr Friesen and Mr Malec emphasized an approach to establishing appropriate ventilation that was more flexible than the suggestion of ridge openings four or five inches in width; i.e., essentially noting that the required area of opening could be effected by ridge openings that might be narrower but more extensive in length. In that regard:

(a) Mr Friesen emphasized, in his testimony, that he and his team make a standard practice of ensuring that every ridge of a roof is cut open completely along its length, apart from ridge areas less than one-and-a half to two feet away from gables.

(b) Mr Malec confirmed that, while LER and other metal roofers had a practice back in 2013 of opening all the ridges in a roof, to create as much ventilation as possible, (even if that was in excess of what was required), that practice had been refined in more recent years; i.e., the two years before trial. In particular, opening of all ridges was often found to create excessive ventilation from the perspective of insulation efficiency, in the sense that less extensive ridge cutting would still provide adequate ventilation for the attic space while retaining more hot air during the winter and more cold air during the summer. For present purposes, (i.e., in terms of focusing on the ventilation issue specifically raised by the parties), I bear in mind that the practice followed at the time of Mr Syson’s roof installation actually resulted in more ventilation than that actually required.

(c) Mr Malec explained, and I accept, why length of the slit baffle actually was the more or most important consideration in relation to the effective operation of such a slit baffle, and that a ridge cut narrower than four to five inches would not compromise the functional ability of the exposed membrane to open and vent air as necessary.

c. As far as Mr Syson’s house was concerned, Mr Friesen testified, (with the use of markings applied to a satellite photograph of Mr Syson’s house, marked as Exhibit 4), that he and his installation team therefore had completely opened every ridge on the roof of Mr Syson’s home, (e.g., at the peak of the roof, but also along each “hip” of the roof), except for the ridge of the “cathedral walk-in” roof above the front door entrance to the home, which had no attic space. In that regard:

(a) Mr Friesen testified that he personally had cut open all of those ridges, except for the one at the peak of Mr Syson’s home, the opening of which had been entrusted to Mr Friesen’s brother Frank.

(b) Mr Friesen candidly acknowledged that, as he was actively engaged in cutting open all the other ridges of Mr Syson’s roof, he did not actually watch his brother Frank make that particular peak ridge cut.

(c) Mr Friesen also candidly indicated that, having worked on so many metal roof installations with his brother, (approximately 80 per year for six years or more, or more than 600 roofs), he could not honestly swear to having a memory, one way or the other, of seeing that particular peak ridge cut after it had been made by his brother. Nor had he personally ever been inside the attic of Mr Syson’s home.

(d) However, for numerous reasons, Mr Friesen was quite confident that his brother Frank had opened the peak ridge of Mr Syson’s house with an appropriate cut. In particular:

1. Mr Friesen emphasized that he and his brother Frank had installed many such roofs together, that they employed a standard practice to ensure that such ridges were always opened, and the ridges always had been opened accordingly. In his experience, his brother Frank would never leave such a ridge uncut.

2. Mr Friesen do recall directing his brother Frank to make that particular peak ridge cut, and providing his brother with instructions about the length of the cut to be made.

3. Mr Friesen also had a specific and firm memory of watching his brother Frank then walking up to the peak of Mr Syson’s roof carrying a “ripper” tool to remove the existing cap shingles at the peak of the roof, along with the skill saw needed to then make the contemplated peak ridge cut.[^36]

4. Mr Friesen also recalled his brother Frank then expressly indicating that the peak ridge cut had been made, and that he had believed his brother.[^37]

(e) When taken to photographs depicting the attic interior immediately below the peak of Mr Syson’s roof, (i.e., the photographs in Tab 21 of Exhibit 2, at p.180), Mr Friesen was quite confident there was an opening cut into the peak ridge behind the “2 by 6” vertical plank or beam running just under the centre of that ridge. In that regard, he explained that, having regard to the existence of such supporting woodwork in the centre of such ridges, he and his installers deliberately choose to make ridge cuts to one side of a ridge or the other; i.e., to avoid cutting into the support beam below. Photographs restricted to showing only the area to one side of such a support beam accordingly would not necessarily depict the presence or absence of such a ridge cut. Mr Friesen’s testimony of industry practice in that regard was confirmed by Mr Malec, who explained that cutting ridges directly in the centre of a ridge was not advisable or effective, as such a cut not only would go directly into the underlying support beam, but that beam then would obstruct the flow of air through the overlying membrane, preventing the ventilation the ridge cut was intended to achieve.

(f) When taken to a photograph showing the interior of a hip ridge of Mr Syson’s roof, (i.e., “Photograph 12” in Mr Flynn’s report), Mr Friesen conceded that he could not see, in the picture at least, any cut in the semi-permeable membrane visible through the ridge opening that had been cut in that area.

d. In relation to the opening of cut ridges by making an appropriate “slit” cut in the membrane applied over the cut ridges:

(a) Mr Friesen testified and I accept that the slits he and his brothers cut in the membrane, in the area of the ridge cuts, created a baffle that would not necessarily be visible to anyone looking at the membrane from below unless there happened to be airflow sufficient to open such baffles at the time.

(b) Mr Friesen’s testimony in that regard was supported by the testimony of Mr Malec, who confirmed that the slit and resulting baffle were such that they generally would not be visible unless the baffle happened to be opened at the relevant moment by the flow of air through the baffle; an airflow which was not constant, but dependant on intermittent forces such as overblowing wind, (creating suction up through the ridge vents), or the build up of sufficient air pressure within the attic to force its escape through the baffle. In particular, the utility knives used to make such slits or incisions in the membrane produced a “smooth cut from rafter to rafter”, without any noticeably jagged edges, such that the opening would not be readily apparent if the baffle was not opened by such forces at a given point in time. Those explanations made sense to me. In particular, I think the very concept of a baffle, and use of a membrane designed to keep moisture out, is inconsistent with suggestions that the slits would create a constantly opened and visible gap in the membrane.

e. In his independent testimony, Mr Devost candidly acknowledged that he lacked a specific memory of the ridge vents on Mr Syson’s roof being checked to confirm that they had been cut and opened. However, Mr Devost also emphasized that it was “one hundred percent standard practice” for master installers to ensure that was done during their final inspection of any roof in the nature of that installed on Mr Syson’s house; e.g., by temporarily removing the ridge caps to visually check and confirm that the ridge vents had been cut and opened, and by taking immediate steps to address any failures in that regard. Mr Devost therefore was quite sure that he and/or Mr Razpla did so during their final inspection of Mr Syson’s roof.

5. When it comes to determining whether there was any failure to cut ridges of Mr Syson’s roof, and/or any failure to open the semi-permeable membrane overlying any such ridge cuts by the making of an appropriate slit opening in the membrane, I think it particularly important to bear in mind applicable burdens of proof. In particular, insofar as Mr Syson and those acting on his behalf were alleging and relying upon such failures, Mr Syson had the burden of positively establishing such failures on the balance of probabilities.

6. For a number of reasons, I was not satisfied that Mr Syson had satisfied his onus in that regard. Without limiting the generality of the foregoing:

a. I find it difficult to believe that Mr Friesen’s brother would have departed from the universal practice of D’s roofing to ensure the cutting of all ridges, especially when the cutting of that particular peak ridge was his sole responsibility, and he ascended to that peak for that express purpose with the tools required to make the required cut in the ridge peak. Nor do I think it likely that he would have informed his brother Mr Friesen the cut had been made if that was not the case.

b. I find it difficult to accept that the absence of such a ridge cut would not have been detected by Mr Friesen during the course of further installation work on Mr Syson’s roof, (e.g., affixing sheets and capping around and over that peak ridge), or during the inspection carried out by Mr Devost and Mr Razpla, bearing in mind that confirmation of such ridge cuts and venting was one of the primary components of such inspections.

c. Although Mr Flynn says there was no such ridge cut in the peak, his other testimony made it clear that he approached the question of adequate ridge cutting from the perspective that all such ridge cuts had to conform with the practice suggested in the document at Tab 15 of Exhibit 2; i.e., whereby a ridge cut would open the peak to either side of its centre. Because Mr Flynn approached the matter from that perspective, I think there is good reason to believe that he was not really focused on whether or not there was a cut on the opposite side of the beam from the vantage point where he took his photographs. In particular, at the time, Mr Flynn thought it sufficient, to demonstrate a suggested failure of making adequate ridge cuts, to show that the peak ridge had not been cut in a manner conforming to a document he approached as an installation manual setting the standard for what LER needed to do in relation to installation of its roof. Had he thought it important to note and establish that there was no ridge cut at all in the area, on either side of the peak ridge support beam, I think Mr Flynn, (in a manner consistent with his meticulous documentation of other suggested deficiencies in the roof), would have taken a photograph from both sides of that peak ridge support beam.

d. In my view, there really was no evidence to suggest that appropriate cuts had not been made in all other ridges of Mr Syson’s roof. Again, Mr Friesen testified, and I accept, that he made such cuts.

e. Mr Syson similarly had the burden of establishing that areas of the membrane over ridge cuts had not been opened. On balance, I was not satisfied that he had met the burden, taking into account:

(a) the absence of any evidence to suggest such cuts were not made in the ridge areas Mr Flynn could not access;

(b) Mr Flynn’s lack of familiarity with the particular special membrane employed by LER;

(c) the absence of any close-up photographs of the exposed membrane over the established ridge cut Mr Flynn was able to access and examine;

(d) the testimony of Mr Friesen and Mr Devost indicating that the ridge vents were opened and confirmed to be opened during inspection; and the testimony of Mr Friesen and Mr Malec indicating why the opened slits may not have been noticeable in the absence of air flow through the created baffle at the time of Mr Flynn’s inspection.

f. For such reasons, I accordingly was not satisfied, on a balance of probabilities, that there had been a failure to cut or open a ridge vent at or near the peak of Mr Syson’s roof, or a failure to open, with appropriate slits, the visible membrane in the ridge cuts depicted in the photographs.

7. More generally, I was not persuaded, on the balance of probabilities, that there was anything but adequate ventilation in Mr Syson’s attic areas. In that regard:

a. In his testimony, Mr Flynn testified that mould conditions were present in Mr Syson’s attic space, even if they could not be seen many years after installation of LER’s roof. In that regard, Mr Flynn testified that “mould itself is invisible” and “exists everywhere”, and then buttressed his opinion that conditions conducive to the growth of mould exist in Mr Flynn’s attic by air temperature and relative humidity readings taken inside Mr Syson’s attic during his inspection of the roof in May of 2016.

b. However, Mr Malec’s testimony included accounts of his experience, which I found persuasive, of visible mould developing far more rapidly, (e.g., progressing rapidly from white mould within a month to the onset of black mould within three to four months), in situations where homeowners had failed to ensure adequate ventilation of their attic space.

c. Moreover, although Mr Flynn testified that there was increased humidity in Mr Syson’s attic space that would lead to problems with condensation, I think it significant that, of the numerous photographs taken of Mr Syson’s house roof, residence and interior attic space, it was not suggested that any of them provided any evidence to support the existence of any such condensation, let alone mould.[^38] In that regard, Mr Flynn indicated that condensation problems would manifest themselves first in relation to the attic’s insulation, which he described as “the first thing that would become mouldy”. However, there was no photographic evidence to suggest any such evidence of condensation, more than three years after installation of the metal roof supplied by LER, and I think Mr Flynn undoubtedly would have documented any such condition while he was in the attic, had it been present in any way. Although Mr Syson claimed to have touched damp insulation while retrieving some Christmas tree lighting from his attic space, in the absence of any noted roof leaks, he also then indicated that the relevant attic space was above the garage; an attic area not above a heated area of the house, in respect of which rising warm air and resulting condensation in the attic space would not be expected to occur in any event.

d. Although Mr Flynn’s observations apparently included the existence of mould on Mr Syson’s windows and in Mr Syson’s basement, (and Mr Syson made reference to such issues), I was not persuaded, (for reasons that include those noted below in relation to causation), that any such visible mould was related to the metal roof installed by LER. In that regard, I think it somewhat telling that Mr Flynn apparently did not think it sufficiently important to include any photographs of such conditions in his report.

8. Nor was I persuaded that there were any mould-related concerns in Mr Syson’s attic requiring significant remediation, including the replacement of attic insulation, at the expense of LER. In that regard:

a. I note that the contract between the parties includes an express disclaimer that LER “will not be held responsible for the growth and/or spread of mould”.

b. Mr Malec testified and I accept that the primary purpose of the disclaimer is to prevent all such claims owing to concerns about causation. In particular, as homeowners desiring new roofs frequently are motivated by concerns about the state of their existing roofs and possible associated leaks, LER understandably wishes to limit its potential liability for mould issues for which it might not be responsible.

c. Mr Malec’s concerns in that regard were buttressed by the testimony of Mr Devost, who noted that, during his work for LER and others, he had encountered a number of situations where mould had developed owing to previous leaks that had not been prevented by homeowners.

d. In my view, such causation issues are present in this case. In cross-examination, Mr Syson confirmed that he had never replaced the existing shingles on his roof since moving into the residence, as its first owner, in 1994. Although Mr Syson denied that he had any issues with his shingle roof prior to January of 2012, (when he met at his home with Mr Malec to execute the written contract between the parties), and specifically denied the existence of any leaks or moisture damage in his kitchen area at the time, photos taken by Mr Friesen, documenting the state of Mr Syson’s existing shingle roof prior to the work done to install the metal roof supplied by LER, confirm that the shingle roof was in a particularly worn and weathered state. Such photos corroborated the testimony of Mr Friesen, emphasizing that, prior to installation of the metal roof supplied by LER, Mr Syson’s existing roof was in “bad shape”, with the shingles being so degraded that the underlying plywood of the roof was clearly visible in areas. Such photos also lend objective support, I think, to Mr Malec’s assertions that, when he met with Mr Syson in Mr Syson’s home, to sign the parties’ written contract, the worn shingle roof already was leaking badly in the area of Mr Syson’s kitchen, to the point where a portion of drywall was missing from the area near Mr Syson’s kitchen table. Having regard to all such considerations, I am satisfied, on the basis of the evidence presented, and a balance of probabilities, that Mr Syson’s shingle roof was worn, overdue for replacement, and clearly amenable to leaking.

9. I was not persuaded, in any event, that the absence of any particular cut or opened ridge vents, or any other demonstrated inadequacy of ventilation, would require any removal and replacement of the entire metal roofing system installed by LER. In that regard:

a. Mr Devost testified, and I accept, that any such ventilation problems could have been addressed relatively easily by temporarily unscrewing the roof panels near any relevant ridge to cut and install a desired ridge vent, or by working on the inside and outside of the roof to cut an opening for the installation of a vent in any other desired area; a process Mr Devost has done a number of times.

b. Mr Malec testified, and I accept, that any such ventilation concerns could be addressed with relative ease by alternative measures, such as:

(a) in the case of established ridge cuts without opened membranes, cutting of the originally contemplated slits; e.g., from inside the attic, in the relevant areas of exposed membrane overlying the existing ridge cuts, using a utility knife with a pole attachment if necessary;[^39]

(b) in the case of any established absence of a ridge cut, removal of the relevant ridge cap to cut a hole in the underlying membrane and plywood, followed by the installation of a “European gasket” to recreate a baffle similar to what originally would have been accomplished in that location by simple slicing of the membrane;[^40] and/or

(c) installing one or more mechanical vents, (and solar-powered mechanical vents in particular), which are powerful but relatively inexpensive; e.g., costing approximately $350.00 each, with a further installation cost of approximately $200.00.[^41]

10. Moreover, had there been any problems with inadequate ventilation of Mr Syson’s attic space established on the balance of probabilities, I was not impressed by Mr Flynn’s assertion that the only remedy was the Draconian solution of the entire roof being removed and replaced. In that regard:

a. To a significant extent, Mr Flynn’s views in that regard seemed driven by a premise that proper ventilation of the roof required cutting back the ridge openings from the top of the ridge in the manner suggested by the document at Tab 15 of Exhibit 2; i.e., to create a gap approximately four inches wide.

b. However, for the reasons outlined above, in my view the evidence indicates that proper ventilation requires adequate square footage of openings at the ridge, and not necessarily a specific configuration of that square footage. Cutting the ridge vent openings back from the ridge more extensively is one solution, but not the only solution. Other adequate approaches include more extended ridge openings, and/or the installation of additional mechanically assisted vents if and as necessary. Moreover, even if wider ridges needed to be cut, the relevant cappings and roof sheets could be opened temporarily to perform that work before being restored to their positions.

B. The particular question of whether Mr Syson’s metal roof contains inadequately secured parts or materials, (and insecure roof panels, cappings and flashings in particular), is addressed elsewhere in these reasons.

C. The particular question asking whether the roof is “connected properly” seems to relate to the concern about adequate fasteners, addressed below. In particular, I note that it mirrors the concern expressed in that regard at page 28 of 47 of Mr Flynn’s report, (and again in his testimony), that “the roof has not been connected properly” because “there are very few fasteners along this steel roof system”, such that “the subject roof system will blow off under high wind conditions”. In my view, for the reasons set out elsewhere in these reasons, the answer to the question is “yes”; i.e., the roof is connected properly.

D. As for the particular question asking whether the installed roof contains uneven panelling:

1. It is not entirely clear whether this question intended to focus on concerns relating to panels possibly being uneven from a horizontal perspective, (e.g., in the sense of not being perfectly aligned with the edge of the roof), or from a vertical perspective, (e.g., in the sense certain panel areas might be elevated, in certain areas, more than they should have been), but it seemed to me that both types of issues were raised on Mr Syson’s behalf.

2. As for panels possibly being uneven from a horizontal perspective:

a. In “Photograph 17” of his report, Mr Flynn noted vertical misalignment of panels, (addressed in further detail below), which he attributes in part to the fact that the initial panels installed in that area were not installed at 90-degree angles, (i.e., in perfect horizontal alignment), to the nearby eave.

b. However, I accept Mr Friesen’s testimony and explanation that perfect alignment of panels with the eaves is simply not possible in all cases, owing to the fact that the underlying house roof on which the metal roof was being installed, (like many other house roofs), was not perfectly square. That in turn necessitated adjustments to the underlying strapping, use of additional panels, and/or use of extended “starter” arrangements in certain areas that normally would not have been necessary, had the house been perfectly square.

c. In my view, a metal roofer such as LER cannot reasonably be held responsible for ostensible misalignments with the eaves which stem from configuration of the underlying roof upon which a metal roof is being installed. In such circumstances, perfect alignment necessarily must give way to ensuring that the installed roof functions properly.

3. As for panels possibly being uneven from a vertical perspective:

a. In one demonstrated instance of vertically uneven sheet panels, (documented in “Photograph 17” of Mr Flynn’s report), one roofing panel sits atop another, and the profile of the panel on top does not appear to align with that of the “mating” panel below.

b. In his testimony, Mr Friesen acknowledged that the two panels were not currently aligned, but denied that the situation created any significant concerns.

c. In his testimony, Mr Devost acknowledged that there was an existing gap between the relevant two panels, but opined that the alignment of the two panels generally was fine, and that any problem in that regard was capable of being remedied effectively by the simple tightening of screws.

d. In his testimony, Mr Malec similarly indicated that such panels could be easily unscrewed and shuffled slightly into alignment, before the screws were then applied again.

e. In my view, while the existence of a minor misalignment and resulting gap was established on a balance of probabilities, the suggestion of it presenting a significant concern was not.

4. On the whole, I think the answer to the question whether the roof contains some uneven panelling generally is “yes”, but the proven extent of such problems and LER’s responsibility for them was limited, and to the extent LER was responsible for such problems, they were capable of relatively simple remediation.

b. Does the roof contain adequate or proper drainage? [Issue C(e)(ii)]

A. Insofar as the question asks whether the installed metal roof is sufficient to ensure that water drains adequately and properly from the roof, in my view, the answer to the question for purposes of this litigation should be “yes”.

B. In that regard, I note that the contours of the installed metal roof generally follow those of the original roof design. To the extent that original design was inadequate to shed water from Mr Syson’s roof properly, that obviously is not a fault attributable to LER. In my view, LER should only be held responsible for inadequate or improper drainage aspects of the roof it installed only to the extent faults in that installed roofing system improperly retain water on the roof that otherwise would not be retained, or permit water to leak into and through the roof rather than being drained off the roof.

c. Were the valleys installed properly? [Issue C(e)(iii)]

A. Mr Syson’s claims of improper installation of “valley” components of the roofing system, (i.e., the components which carry water, shed from angled roof panels into the lower areas between each angled area of the roof, towards the lower edge of the roof and its eavestroughs), depend on numerous criticisms advanced by Mr Flynn.

B. Some of the criticisms advanced by Mr Flynn in relation to the valley work installed by LER focused on what appeared to be primarily cosmetic issues, not affecting the function or performance of the roof. In that regard:

1. Reference was made to “unsightly detailing” and rumpled or crimpled areas in certain valleys of the roof, (e.g., in the valley areas depicted in “Photograph 9”, “Photograph 37” and “Photograph 41” of Mr Flynn’s report), some of which were said to be visible from the ground.

2. Reference similarly was made to “crimpled” steel and caulking, and crooked and/or asymmetric cutting back of the panels positioned to either side of a valley; e.g., in the valleys depicted in “Photograph 13”, “Photograph 16” and “Photograph 21” of Mr Flynn’s report.

3. Although Mr Friesen said he and his installation team aimed to cut sheets overhanging/overlapping the valleys symmetrically, (i.e., “three inches from the middle of the valley all the way along”), that clearly was not done in at least some cases; e.g., in relation to the valley depicted in “Photograph 23” of Mr Flynn’s report or the valley depicted in Tab 21 of Exhibit 2 at page 204. It seems clear that, in making such cuts, (with what Mr Friesen described as a “shear” or “nibbler” tool), the installers did not always proceed in uniform and straight lines that were equidistant from the centre of valleys. In that sense, the sheets overlapping the valleys were cut in an uneven fashion. Mr Friesen and Mr Malec candidly indicated that such failures probably were caused by an installer not using proper “chalk lining” to facilitate a straight and proper cut.

4. In my view, these are valid aesthetic criticisms, although a number of such defects would not be readily noticeable from the ground. Moreover, as noted by Mr Malec, the cutting of sheets adjoining a valley in a manner that effectively flares to a wider exposed area of the valley sheet, as water runs down the roof, has certain countervailing functional benefits; e.g., insofar as it facilitates the flow of any accumulating debris towards the bottom of the roof.

5. Furthermore, if such uneven cutting presents any unacceptable aesthetic concerns for Mr Syson, I accept Mr Malec’s testimony that the situation could be redressed through a reattendance to chalk and cut/trim the panel edges adjoining a valley in a symmetrical way. Mr Malec estimated that such work could be performed in approximately 10 to 30 minutes, (depending on the level of experience of those doing the work), and entail a cost of approximately $300.00.

C. Some of the valley-related criticisms offered by Mr Flynn focused on suggestions that certain valleys had been installed in a manner that would create performance issues. In that regard:

1. A good deal of time was spent focusing on particular valley work depicted in a number of photos; e.g., in “Photograph 13” and “Photograph 16” of Mr Flynn’s report. In relation to that area, and possible functional concerns:

a. Mr Flynn noted that a portion of the lower end of the valley sheet in question extended or was tucked below rather than above a lower roof panel, and opined that the installation was faulty because it would lead to possible water infiltration in the future.

b. Mr Flynn noted that one of the screws, fastening a panel overlapping the valley to the left, had been installed too close to the centre line of the valley, creating the possibility for infiltration of water passing down the valley.

c. However, I was not persuaded, on a balance of probabilities, that the relevant valley created or threatened any functional concerns as alleged, or was demonstrative of any wider concerns. Without limiting the generality of the foregoing:

(a) In his testimony, Mr Friesen explained that the particular valley location, (i.e., with a valley sheet under a sheeting panel to the left that nevertheless had to terminate in an area where the relevant panel continued downwards), necessarily created a gap that was best closed by bending of the valley sheet coupled with a minimum of caulking, rather than the alternative of having to relying on a much greater use of caulking and/or valley tape – discussed in greater detail below. In Mr Friesen’s experience, the method he employed in the relevant area was the best method of making that particular unusual situation watertight; e.g., by avoiding the creation of bigger gaps and necessarily employing “bigger blobs” of caulking. In Mr Friesen’s view, the relevant area was indeed watertight.

(b) While Mr Friesen acknowledged that the one particularly identified screw was ostensibly too close to the centre line of the relevant valley, his testimony also emphasized that particular screw placement essentially was an aberration and presented no functional concerns. In particular:

1. Mr Friesen emphasized that he and his installation team make a general practice of staying at least nine inches away from the centre line of valley sheets, and towards the outer edges of the valley sheets, when screwing them down. A product Mr Friesen knows as “valley tape”, (described in more detail below, and effectively sealing the gap between the valley sheets below to the overlapping roofing sheets above), is then applied down the sides of the valley sheets, in a position between the screws at the outer edges of the valley sheets and the inner areas towards the centre of such sheets, effectively preventing any water travelling down the valley sheets from reaching the screws holding them down.

2. In the case of the particular screw in question, while placement of the screw in that location was thought to be necessary, (i.e., to secure the lower end of that particular valley sheet in that location), Mr Friesen also was sensitive to the possible water infiltration concerns that might present, and addressed those concerns through the use of washers and caulking that made the relevant area “perfectly sealed”.

(c) In my view, there was no evidence presented to contradict or undermine Mr Friesen’s assertions in that regard, apart from the single identified instance of an admittedly misplaced screw towards the lower end of the valley sheet depicted in “Photograph 13” and “Photograph 16” of Mr Flynn’s report.

(d) There also was no evidence to suggest that the relevant situation had resulted in any demonstrable leaks of the roof or other problems in the 5-6 years between its installation and the trial.

(e) Whatever its cosmetic failings, I am not persuaded on a balance of probabilities that the relevant area of the roofing system is not fit to serve its intended purpose.

2. Criticisms were offered in relation to the valley depicted in “Photograph 32” of Mr Flynn’s report, with concerns being expressed that leaks were possible in that area because the valley sheet terminated with the nearby wall. However, Mr Friesen testified and I accept that the relevant valley terminates over top of the sheet below, and that flashing Mr Friesen installed in that area also extends beneath the relevant valley termination, (in a manner not visible to Mr Flynn), such that the overall work in that particular addresses and “absolutely” prevents any legitimate concerns about leaking of the depicted valley length or termination.

3. Criticisms also were offered in relation to the valley depicted in “Photograph 21” of Mr Flynn’s report. In relation to that area, and possible functional concerns:

a. Mr Flynn opined that excessive gaps had been left between the overlapping roof panels and the valley, without installation of an appropriate “universal closure strip”, and that the primary valley piece terminated too soon at its lower end; before reaching the eavestrough. Both suggested failings were said to create areas where the roof would be prone to leaking; e.g., through the creation of ice damming, resulting in water back up and infiltration. Once again, it was suggested that LER had failed to comply with its own installation document, found at Tab 15 of Exhibit 2, insofar as it contained indications that the bottom end of a roof valley sheet should be cut and shaped according to the alignment of the eaves. Mr Flynn also opined that the visible gap was symptomatic of a broader failure to employ “universal closure strips” in numerous locations throughout the roofing system.

b. However, I was not persuaded, on a balance of probabilities, that the relevant valley created or threatened any functional concerns as alleged, or was representative of more widespread concerns in that regard. Without limiting the generality of the foregoing:

(a) For the reasons noted above, I do not think the document at Tab 15 of Exhibit 2 was intended to be an instruction manual to be universally applied in all situations.

(b) Mr Friesen testified and I accept that, in this particular situation, while the bottom end of the valley is not cut and shaped with the alignment of the eave below, and instead runs at an angle to that eave, with portions of the bottom end of the valley sheet therefore terminating short of the eave, the configuration does not create any functional performance concerns. All ends of the valley piece in question terminate above a starter piece below, such that water flowing downward off the relevant valley sheet, onto that starter, then will be carried by the starter sheet into the eavestrough below.

(c) For similar reasons, the starter sheet would address the possible ice damming concern suggested by Mr Flynn.

(d) As far as the suggestion of excessive gaps is concerned, I agree that there is a vertical distance between the valley sheet and the edge of the depicted overlaid panel to the left. However, whether or not that was sufficiently addressed by application of a “universal closure strip” is a question of fact, and Mr Flynn inherently was in a less advantageous position than that of Mr Friesen to know with certainty what had and had not been done in that regard. I accept Mr Friesen’s testimony that he and his team actually did apply what he described as “valley tape” in that area; i.e., a strongly adhesive product, (described in detail by Mr Friesen and Mr Malec), that is available in various widths, (although the tape frequently employed by Mr Friesen was one inch wide), with an initial thickness of a quarter of an inch, (when initially spooled around its dispensing roll), which then expands significantly after application to a thickness of approximately two inches, to fill and seal gaps that may exist between the valley sheet and the overlapping roof sheets.[^42] Once expanded, the strong adhesive quality of the valley tape not only holds the components of the roofing system in place, but it also forms a seal; e.g., preventing the infiltration of wind, snow, water and insects.

(e) As noted above, Mr Friesen and his installation team actually made extensive use of such valley tape, (which seems to function in the manner of a universal closing strip), throughout their installation of Mr Syson’s metal roof; e.g., along the sides of valleys. I appreciate that the presence of such valley tape may not have been visible to Mr Flynn; e.g., if the tape was positioned, as Mr Friesen described, in essentially concealed areas such as those near the edges of valley sheets and significantly underneath the overlapping edges of roofing sheets. However, I accept Mr Friesen’s testimony that such valley tape, and the adhesive seals it creates, is present throughout the roofing system Mr Syson received.

(f) As Mr Malec explained in this testimony, each of the valley sheets underlying the overlapping panels of the roof has a raised one-inch “kick” or elevation near its side edges; i.e., an elevation that creates an additional barrier to the infiltration of any water making making its way past the valley tape routinely installed between that kick and the centre of the valley. That aspect of the valley sheet component is something else that was not visible to Mr Flynn during his inspection of the completed roof.

(g) In any event, there was no evidence to suggest that the relevant specific situation identified above had resulted in any demonstrable leaks of the roof or other problems in the 5-6 years between its installation and the trial.

4. It was suggested that there similarly was an “excessive gap” between the lowest corner of the roofing panel depicted in “Photograph 39” of Mr Flynn’s report and the valley sheet below it, in turn giving rise to some degree of demonstrated “uplift” of that roofing panel. However, I accept Mr Friesen’s testimony that the relevant area of the panel in question is not suspended freely above the relevant valley sheet below, but is in fact securely fastened in that location by valley tape, (placed there and not visible beneath the panel), which was somewhat larger than normal, (owing to the larger “pan” of the valley at the bottom of that sheet), in turn raising the panel a bit more from the valley sheet below.

5. Although Mr Flynn expressed concern about an inappropriate gap between the lower termination of the valley sheet and the sheet panel below, depicted in “Photograph 38” of Mr Flynn’s report, I accept Mr Friesen’s testimony that the situation does not appear to create any concerns about the possibility of leaking at that location. In particular, the valley sheet clearly seems to terminate over the top of the panel below in that location.

6. Concerns were expressed about the use of caulking to seal some of the depicted valleys at their lower termination. For the reasons noted below, I accept that visible caulking, exposed to the elements, will have a lifespan that is likely to be shorter than the surrounding metal components of the roofing system. However, I also accept the testimony of Mr Friesen and Mr Malec that such caulking practices are commonly used by all metal roof installers, and while such caulking might require periodic maintenance to address any leaks attributable to such caulking degrading over time, (e.g., via servicing that would have been covered by the warranty Mr Syson would have received had he paid LER the agreed price for installing the roof), it does not represent a defect in workmanship.

d. Were the steel roof panels installed to the proper length? Does the roof system extend far enough over the flashing detail? [Issue C(e)(iv)]

A. The length of the roof panels, and the extent to which they extended down into and over the area of the eavestroughs, was said to be a very significant failing of the roofing system installed on Mr Syson’s roof by LER. In particular, Mr Flynn opined that the roof panels needed to extend one-half to three-quarters of an inch past what he described as “flashing detail”, and that there were consistent failures in that regard around the lower edge of the metal roof; e.g., as depicted in “Photograph 5”, “Photograph 14” and “Photograph 20” of Mr Flynn’s report. Given the reality that metal roofing panels cut too short obviously cannot be stretched or extended beyond their cut length, it was said by Mr Flynn and Mr Syson’s counsel to be a failing requiring the entirety of the metal roof to be removed and replaced.

B. In my view, however, the contention reflects a fundamental lack of understanding of the particular roofing system employed by LER in relation to Mr Syson’s roof, and arguably the most powerful example of why it was inappropriate to suggest that the document at Tab 15 of Exhibit 2 was intended to indicate any sort of universal approach or standard applicable to all types of metal roofing installed by LER. In that regard:

1. Particular reliance was placed by Mr Flynn and Mr Syson’s counsel on:

a. diagrams in the document showing extension of metal roof panels beyond the edge of the building;

b. a statement in the document, under the heading “Ordering the roof”, indicating “A rule of thumb is that the length (L) of a roofing sheet is measured from the outer surface of the farthest facing board at the eaves to the middle of the ridge”; and

c. a statement in the document, under the heading “Laying out the sheets”, indicating that one should “Fix the first sheet on the side where you are starting with an appropriate length over the eaves (approx.. 40-45 mm)”.

2. It was suggested that LER therefore deviated from its own “specifications”, as well as what Mr Flynn felt was standard roofing practice, insofar as an inspection and photographs confirmed that the metal roofing sheets installed on Mr Syson’s home generally terminate short of the eavestroughs surrounding the roof, and instead “stop short” on top of what initially was characterized as “flashing detail” extending to the end of the roof and down into the eavestroughs.

3. However, as emphasized by Mr Friesen, Mr Devost and Mr Malec in their respective testimony, the length and positioning of the metal roofing sheets on Mr Syson’s home, in relation to the eavestroughs, was entirely intentional – and indeed integral to the proper functioning of the installed roof.

4. As Mr Malec emphasized repeatedly during the course of his testimony, (and during his cross-examination in particular), the particular diagram and statements extracted from the document at Tab 15 of Exhibit 2 were never intended to apply to all types of situations and roofing systems. To the contrary, they were intended to apply to very basic metal roof installations on structures lacking any eavestrough system. In that limited context, (but only that context), it made sense to employ metal roof sheeting that would extend past the edge of the structure, helping to ensure that water flowing down off the roof would “shoot out” to some extent, away from the structure, instead of simply draining or dripping down the side of the structure onto fascia, thereafter following the fascia towards a soffit, in turn creating a leak in the wall.

5. In the context of more complex residential roofing, involving an eavestrough system designed to capture and redirect rain water flowing off the roof, a fundamentally different approach is required, and LER has developed and employed a quite different system, (proprietary to LER), to address such situations. In particular, as Mr Malec explained in his testimony, LER first developed the system in 2010 to address some perceived problems with water overshooting eavestroughs, especially in lower pitched roofs where water is more inclined to shoot outwards from a building.[^43]

6. As emphasized by Mr Friesen and Mr Malec in their testimony, what was misleadingly perceived and characterized as “flashing detail”, leading to the edge of Mr Syson’s roof and into the eavestroughs, is in fact the visible portion of an extended metal “starter” that is installed first by LER around the lowest portions of the roof. The bottom edge of that “starter” or “drip edge”, located furthest down the roof, goes into the eavestrough. From there, the “starter” extends up the roof, well under the lowest portion of the metal roofing sheets, and includes a raised barrier approximately 1inch high near its top or highest edge, (i.e., the portion of the starter extending furthest up the roof from its bottom edge), to effectively prevent any concerning “back up” of water or ice damming. The metal roofing sheets are then positioned such that their lowest end, (i.e., the end closest to the lowest edge of the roof), extends partially over the starter, such that downward flowing water drains from the panels onto the starter, and from the starter down into the eavestroughs.

7. In that regard, the length of the metal roofing sheets, cut so as to create a space at their lowest point where water flowing down off the sheets hits the exposed portion of the starter before reaching the eavestrough, is quite deliberate. In particular, forcing the water flowing downward along the sheets to hit the exposed starter poses no risk of the water backflowing in a manner that may cause damage, (for the reasons noted above), but effectively slows the water down, (i.e., as the water tends to “hug” and travel along the surface of the starter), thereby helping to ensure that the rainwater is guided into the eavestroughs instead of overshooting them – which would defeat the purpose of having such an eavestrough system. In his testimony, Mr Friesen said he and his installation team therefore usually leave a distance of approximately six centimeters, (i.e., slightly more than two inches), of exposed starter between the bottom edge of roof sheet panels and where the starter below empties into the eavestrough.[^44] In his testimony, Mr Malec provided a similar indication; i.e., that the bottom of a roofing panel or sheet, on a roof such as that of Mr Syson’s home with an eavestrough drainage system, ideally should stop a minimum of one or two inches short of the start of the eavestrough or gutter.

8. Mr Malec testified and I accept that the statements and diagrams taken from the document at Tab 15 of Exhibit 2, and relied upon by Mr Flynn and Mr Syson’s counsel, were intended to address the installation of a metal roof on a far more simple structure, (such as a shed), without eavestroughs, and therefore not requiring use of an LER starter.

9. Such views were echoed in the independent and somewhat more blunt testimony of Mr Friesen. When asked why he had cut and positioned the metal roofing sheets in the manner he had, in relation to Mr Syson’s roof, in a manner different from the manner suggested by the document at Tab 15 of Exhibit 2 depicting install of a metal roof on a structure without eavestroughs, Mr Friesen responded as follows: “Cause if you go past the eaves, what’s the point of havin’ an eavestrough? Like… the water’s just gonna run over the eavestrough, and then you’d have a big situation. The main reason of a trough is to catch water and the way I did it is exactly what it’s doing.”

10. In his independent testimony, Mr Devost similarly emphasized his view that the roofing sheets or panels installed on Mr Syson’s roof were not terminated “too short” at the eavestroughs, but were in fact installed in accordance with the standard practice. They were not supposed to extend “at all” into the eavestrough or gutter.

C. The distinctions and LER’s varying systems in that regard were explained to my satisfaction, and made eminent sense to me. In particular, I see no common sense or logic in suggestions that the metal roofing sheets on a residential roof such as that of Mr Syson, equipped with an eavestrough drainage system, should have been universally longer so as to extend well into or over the eavestroughs on Mr Syson’s home, promoting the flow of downward flowing water out and over such eavestroughs. The situation presented by Mr Syson’s home was fundamentally different from the situation addressed by the document at Tab 15 of Exhibit 2, and required a distinctly different approach.

D. In my view, the steel roof panels installed on Mr Syson’s roof accordingly were installed to the proper length. They extend far enough over what was improperly characterized in the question posed as “the flashing detail” leading into Mr Syson’s eavestroughs, but is in fact the “starter” used as part of LER’s properly functioning roof system.

e. Were the counter-flashings at various parts of the roof installed properly? [Issue C(e)(v)]

A. Counter-flashings are metal components of the roofing system, in the nature of trim, that help to fasten sheets of the metal roof to walls and prevent water infiltration.

B. In his testimony, Mr Friesen readily affirmed that the counter-flashings he and his installation team installed on Mr Syson’s roof were face-mounted; i.e., applied to the face of masonry. However, he emphasized that such flashings were secured in place by screwing them onto the relevant sheets and by use of caulking that not only acted to seal such areas but was extremely adhesive after it dried. In the circumstances, Mr Friesen was quite certain that there were no concerns about the counter-flashings possibly becoming dislodged or displaced by blowing wind. Moreover, the previous flashing, used in relation to the underlying shingle roof, also was left in place underneath the installed metal roof system.

C. Mr Flynn opined that the additional new counter-flashings installed by LER in relation to Mr Syson’s metal roof were improper, insofar as they were not affixed mechanically by cutting a raglet into the relevant brickwork and using Rawl fasteners before the application of a Dymeric seal. As that was not done, Mr Flynn felt that all such flashings required removal and replacement. He also suggested that the existing flashings likely would blow off under wind conditions.

D. To the extent Mr Flynn’s concerns in that regard rest largely on an assertion that such flashings could not permissibly be affixed to walls via caulking, but instead had to be embedded into wall masonry, (e.g., through use of raglets), pursuant to a supposedly applicable requirement of regulations enacted pursuant to Ontario’s Building Code Act, 1992, S.O. 1992, c.23, I respectfully disagree with that underlying proposition as a matter of statutory interpretation. In that regard:

1. At trial, counsel for LER filed O.Reg.332/12, which was the historical version of the regulation in place between November 2, 2012 and May 8, 2013; i.e., the period during which LER installed the relevant steel roof on Mr Syson’s property.

2. In my view, the regulation clearly and repeatedly draws distinctions between “roofs” and “roofing” generally, (i.e., in numerous instances where those terms are used without qualification), and particular types of roofs and roofing where express qualifying adjectives are employed in the legislation.

3. For example, the regulation makes sweeping and unqualified references to “roofs” and “roofing” when:

a. indicating the “purpose or roofing” in s.9.26.1.1;

b. requiring conformity of “roofing” materials to certain specified material standards; and

c. requiring that all nails used for “roofing” have certain minimum corrosion-resistance and length.

4. In contrast, the regulation specifically makes reference to different types of roofing when:

a. specifying that nails used for certain types of roofing, (e.g., asphalt roofing, or roofing employing wood shingles or shakes), have certain nail head diameters; and

b. specifying different slope limits for different roofing types, including distinctions expressly made between “asphalt roofing”, “profiled metal roofing”, and roofing employing “sheet metal shingles”.

5. The regulation continues to employ such differential terminology and distinctions when it addresses “flashing” requirements. In particular:

a. In s.9.26.4.1, the regulation effectively imposes a general requirement of flashing at intersections for all types of roof, by using the terms “roofs” and “roof” without qualification. In particular, the regulation requires that, “Except where the omission will not adversely affect adjacent supported or supporting elements, flashing shall be installed at junctions between roofs and (a) walls that rise above the roof, and (b) guards that are connected to the roof by other than pickets or posts.” [Emphasis added.]

b. In s.9.26.4.3(1), the regulation imposes specific valley flashing requirements in relation to “shingled roofs”.

c. In s.9.26.4.4 (1) and (2), the regulation imposes specific flashing protection requirements, including a requirement that flashing be embedded not less than 25 mm in masonry, in relation to “the intersection of shingle roofs with masonry”. [Emphasis added.]

d. Similarly, in s.9.26.4.5, the regulation imposes specific flashing requirements in relation to the “intersection of shingle roofs and walls other than masonry”. [Emphasis added.]

6. In my view, by demonstrating its intention to make certain requirements applicable to all roofs without qualification in some instances, by clearly and expressly differentiating between metal roofs and other types of roofing in other instances, and by expressly imposing a requirement for embedding of counterflashing in masonry in the case of shingle roof intersections with masonry walls and chimneys while refraining from imposition of a similar requirement in relation to such intersections in the case of metal roofs, the regulation effectively indicated its intention that there was to be no such requirement in relation to metal roofs.

7. That conclusion seems consistent with other evidence I received about standard industry practice in relation to the installation of such flashings. In particular:

a. In his testimony, Mr Friesen said that he had never installed counter-flashings in that manner at any time during his 14 years of installing metal roofs, for various employers, and had never encountered any issues in that regard.

b. In his testimony, Mr Devost similarly noted that, during his even more extensive experience working in the metal roof industry, for various employers, he had never seen flashings for metal roofing installed by “etching” them into masonry, as opposed to installing them over existing flashings and fastening them to walls with silicone. In his experience, LER’s practice in that regard was consistent with that followed in practice by all metal roofing companies, and compliant with industry standards.

E. Mr Flynn opined, in any event, that the flashings installed by LER, face mounted and sealed with caulking detail, were destined to degrade, crack and fail over time, allowing for water entry in the long term. In particular, Mr Flynn suggested that caulking failure would occur prior to the expected life cycle of such a steel roofing system.

F. However, I was not persuaded on the evidence that the flashings installed on Mr Syson’s roof presented any serious concerns requiring removal and replacement of those components. Without limiting the generality of the foregoing:

1. In my view, there was no evidence whatsoever that any of the flashings installed by LER had become loose, (let alone blown off the roof), had permitted the infiltration of water, or otherwise had failed to serve their intended purpose over the 5-6 years between completion of the metal roof and trial.

2. Although concerns were raised about the lifespan of caulking, the evidence I received indicated, and I accept, that distinctions need to be made between caulking that is exposed to the elements and caulking that is applied as an adhesive and sealant behind and beneath metal components such that it has little or no such exposure. In that regard:

a. It seemed clear that caulking directly exposed to the elements has a limited and shorter lifespan than caulking applied in other ways. The testimony provided by Mr Flynn, Mr Friesen and Mr Malec seemed to agree on that point. Mr Malec in particular acknowledged that the lifespan of caulking exposed to the elements, (e.g., sun, rain, ice and snow), was approximately seven years.

b. However, Mr Malec testified, and I accept, that caulking applied behind and below metal components of the roof, without such direct exposure to the elements, would be far more durable and have a much longer lifespan; e.g., of at least 15 to 20 years. (In that regard, Mr Malec’s testimony effectively was buttressed by the independent testimony of Mr Friesen, who indicated that, during his years of servicing and installing so many metal roofs, he has never had to “re-caulk” such areas.) Moreover, applied caulking which is completely covered, with no exposure to the elements, (such as that covered completely by applied flashings), lasts even longer; perhaps as long as a century.

c. In my view, the evidence in this case indicates that, while there are some areas of exposed caulking in the metal roof installed on Mr Syson’s roof, the vast majority of such caulking was applied behind and beneath the metal components of the roof. That certainly seems true of the counter-flashings.

d. In the circumstances, the caulking used to secure the counter-flashings seems unlikely to degrade for at least 15-20 years, and probably the lifespan of the metal roof. It accordingly seems capable of securing those components in place even without the additional screwing of such components to the metal sheeting described by Mr Friesen – although that additional security is present. When both those fastening mechanisms are taken into account, it seems to me that concerns about the items blowing off in the wind are unrealistic, at least during the probable lifespan of that caulking.

e. In either case, (i.e., having regard to caulking exposed to the elements or sheltered from the elements), I accept that any concerns about leaking from eventual degradation of the caulking could and would have been addressed by inspections, maintenance and repairs covered by the warranty Mr Syson would have received had he paid LER the agreed roof purchase price. As Mr Malec emphasized, that is one of the reasons why LER has a service department.

f. Was the roof system’s hip and ridge capping installed and secured properly? [Issue C(e)(vi)]

A. In his expert report and testimony, Mr Flynn opined, by reference to “the manufacturer’s instructions”, (i.e., the document at Tab 15 of Exhibit 2, which he alternatively characterized as LER’s “installation manual”), and photographs showing alternative views of a particular “hip” cap, (i.e., “Photograph 18” and “Photograph 19”), that LER had used an insufficient number of fasteners when installing such capping. In particular, relying on a statement at page 21 of the document, it was suggested that the ridge capping should have been fixed or mechanically connected to the roofing sheets with screws “at every other wave” of the capping, and that demonstrably was not done on the capping depicted in the photographs. It accordingly was said that the caps installed on Mr Syson’s home accordingly would be prone to uplift during wind conditions.

B. For the reasons outlined above, I was not persuaded that the document relied upon by Mr Flynn was intended to represent a binding standard or instruction in relation to such matters. I also had concerns about the problems inherent in extrapolating, from the condition of one particular cap, a conclusion that the same condition necessarily applied in relation to all hip and ridge capping on Mr Syson’s home – including those which Mr Flynn could not readily access and inspect from a perimeter inspection.

C. More generally, I was impressed by the testimony of Mr Friesen and Mr Devost, who each explained that, in practice, the use of fasteners on capping cannot always be applied in a uniform or standardized fashion, (as reading the document at Tab 15 of Exhibit 2 out of context might suggest), but instead requires careful and idiosyncratic selection of fastener locations. In particular, they both explained, to my satisfaction, that excessive or improper placement of fasteners on either side of the cap, (which necessarily cannot lie flat on a ridged metal roof such as the one chosen by Mr Syson), has the incidental effect of “torqueing” the line of the cap to one side or the other, making the alignment of the cap uneven, whereas it obviously has to remain in a somewhat straight line mirroring that of the underlying hip or ridge. Screw fasteners accordingly are placed with irregularity, in positions where they can “grab easily”, without having that torqueing effect. Strict adherence to the “guidelines” mentioned in the document relied upon by Mr Flynn accordingly would frustrate that important countervailing concern.

D. Based on his inspection of Mr Syson’s roof, and his review of photographs at trial highlighting the supposed concern regarding cap instability, Mr Devost testified that nothing he saw presented any concerns about cap stability. Mr Devost also emphasized that, if there were any concerns in that regard, it was an extremely simple task, (e.g., taking less than five minutes), to install an additional screw or fastener in a cap if/as desired.

E. In my view, Mr Devost’s assessment of general cap stability effectively has been borne out by realities in the intervening years since completion of the roof’s installation; i.e., in the 5-6 years between installation of the roof and trial. In particular, as emphasized by Mr Friesen in the course of his testimony, there was no evidence whatsoever of any installed cap on Mr Syson’s roof having experienced uplift or removal because of wind conditions.

F. In my view, the roof system’s hip and ridge capping generally were installed and secured properly.

G. That is not to say that the installed roof is perfect in that regard. As Mr Friesen acknowledged in cross-examination, there was at least one demonstrable location where a ridge cap met a raised ridge of the underlying sheeting where an additional fastener might usefully have been inserted. In another location, (depicted in the lower photograph at Tab 21 of Exhibit 2 at page 208), Mr Friesen acknowledged that the end of a particular ridge gap was elevated and needed to be redirected downward and secured to the roof, albeit with minimal effort; e.g., by loosening an upper screw and bending the ridge cap downward, before applying additional screws.

H. However, I was not persuaded that such failings were significant, or would require any significant remedial work. Again, the hip and ridge capping generally seems to be secure and functioning properly.

g. Are the spacings between the fasteners appropriate? [Issue C(e)(vii)]

A. I frankly am not entirely sure that this question represents a separate and distinct concern from that already addressed in relation to fasteners applied to capping. In particular, the question seems to mirror the wording of Mr Flynn’s comment in relation to “Photograph 19” of his report, (which focuses on a particular hip cap from an alternative view), opining that “the spacings between the fasteners are excessive”. To that extent, I already have addressed and answered that issue in my above comments.

B. There are additional concerns, (addressed below), about the total number of screws LER employed in relation to the roof installation. However, while the number of screws used obviously might have an incidental impact on the spacings between individual fasteners, (e.g., as 1000 screws employed in relation to a particular panel might increase the likelihood of individual screws being closer together than a situation involving 100 screws used in relation to the same panel), this question seems to focus on a different specific concern.

C. More generally, I am not persuaded by the evidence that the “spacing between fasteners”, in Mr Syson’s roof installation, presents any concerns about stability or function. To the extent the concern relates to fasteners being too far apart, thereby creating possible concerns about uplift in wind conditions, I note again that, (as emphasized by Mr Friesen and Mr Malec in their testimony), the experience of the 5-6 years between installation of the roof and trial strongly suggests otherwise. There was absolutely no evidence of any part of the roof experiencing any uplift, let alone any uplift sufficient to blow pieces of the roofing system entirely off the roof.

D. In my view, the “spacing between fasteners” on Mr Syson’s roof accordingly is appropriate.

h. Were the valley flashings installed properly? [Issue C(e)(viii)]

A. As highlighted in cross-examination, the wording of this issue, referring to “valley flashing”, reflected terminology used by Mr Flynn in his report to a situation, (depicted in “Photograph 13” of Mr Flynn’s report), where a particular valley sheet terminated at its lower end with one part of it being tucked under rather than over a lower sheet of roof paneling. I frankly was not persuaded that there is any component of the roofing system, properly described as “valley flashings”, that was separate and distinct from “valleys” and the valley sheets used in the creation of such valleys.

B. In the circumstances, I believe I already have addressed such concerns in my comments dealing with whether the valleys of the roofing system were installed properly.

C. Without limiting the generality of the foregoing, those comments address, in particular, the concerns raised by Mr Flynn in relation to the situation depicted in “Photograph 13” (and again in “Photograph 16”) of his report.

i. Does the roof contain the correct number of screws? [Issue C(e)(ix)]

A. The question as worded is problematic, insofar as it refers to “the roof” in its entirety, and there is simply no evidence before me to indicate specifically the total number of screws Mr Syson’s roof should contain, or the total number of screws that Mr Syson’s roof actually contains. In that sense, it is not possible, (without those two pieces of information), to answer the specific question that has been posed in absolute terms – although, as acknowledged by Mr Friesen, there admittedly was at least one location, (depicted in Tab 21 of Exhibit 2 at page 188), where an obviously intended screw was missing.

B. Based on the evidence presented, and the testimony of Mr Flynn in particular, I believe the concern expressed on behalf of Mr Syson, and probably reflected in the question now being addressed, is somewhat different and more specific. In particular:

1. Mr Flynn and Mr Syson’s counsel effectively have focused on a particular indication, in the document at Tab 15 of Exhibit 2, (what they attempted to characterize as an “installation manual”), that “the estimated screw consumption is 80-100 pcs/SQ” of the roof slope and depends on the quantity of the flashings”.

2. More generally, Mr Flynn opined, (using particular photographs such as ‘Photograph 15”, “Photograph 20” and “Photograph 27” in his report as examples), that the roof “has the incorrect number of screws according to the manufacturer’s specifications”, that “the correct number of screws is not observed across the panels”, that “there are too few screws within the subject roofing system” and “far less than indicated in the crew installation plan and description notes within the manufacturer’s manual”, that “the roof has not been connected properly”, as there are “very few fasteners along this steel roof system”, and that “the subject roof will blow off under high wind conditions”.

C. However, I find the concerns or complaints in that regard problematic for a number of reasons, including the following:

1. Again, for the reasons outlined above, I was not persuaded that the document at Tab 15 of Exhibit 2 was intended to have the binding quality or implications suggested on behalf of Mr Syson.

2. In his testimony, Mr Malec, (who wrote the document in question), clarified that the reference to “80-100 pcs/SQ” was intended to mean “80-100 pieces per square”, with a “square” meaning a space “10 feet by 10 feet”, or “100 square feet”. Moreover, as Mr Malec emphasized:

a. Even on its face, the indication was only an “estimate”, and the reference is to “consumption”, not “application”. The concept of “consumption” was intended to provide an idea of the amount of screws that might need to be purchased for a particular project, and included an element of “waste” occasioned by a significant number of screws inevitably being dropped and bounced off the roof beyond the eavestroughs, requiring any estimated screw consumption to make allowances for the “extra” screws required to do the job.

b. The number of screws employed in any particular panel depends on the particular pattern of screw positioning used, and there are several acceptable alternative patterns used in practice.

c. The number of screws employed also depends on the experience of the installation crew involved, as crews with less experience have a tendency to employ more screws than those with more experience of what is required to adequately secure the roof, which is the real measure of adequacy. There is simply no numerical “minimum” of screws that needs to be applied per panel, in all instances.

d. Moreover, any suggestion that a secure application requires equal dispersion of screw placement does not reflect an adequate or proper understanding of uplift concerns. Significantly increased screw application, (e.g., at every single module rather than every second module), is the expected norm in relation to the lowest section of the roof, nearest the eavestroughs, as “uplift” primarily will occur at the “end” of the roof, requiring “stronger application” of screws in that location. There is no practical need for a similar number of screws in other locations.

3. As noted elsewhere in these reasons, I think there are inherent concerns in extrapolating, from one photograph of a particular section of the roof, firm conclusions about what was done in other areas of the roof. I think that is particular so when, even in relation to the screw locations identified in the particular photograph by Mr Flynn, the pattern of screw application clearly is not uniform throughout the panel; e.g., displaying some regularity along the lower edges and up a particular ridge, but displaying an irregular concentration of screws in another area of the panel. The inferences to be drawn are even more problematic when Mr Friesen, (the person who actually applied all fasteners to the panel in question), credibly testified that there were additional screws in the particular panel not identified by Mr Flynn, (via his “red arrow” markings), and Mr Flynn himself acknowledged in cross-examination that there might be more screws, not highlighted by red arrows, in the particular panel.

4. In his independent testimony, Mr Devost indicated that, during the course of his roof inspection, he had no concerns about there being an insufficient number of fasteners used to secure the roof. He emphasized that, had there been any such concerns, he definitely would have addressed them immediately.

5. Once again, it seems to me that the experience of the 5-6 years between installation of the roof and trial strongly suggests that the number of fasteners used to install Mr Syson’s roof has not presented any real concerns. Again, there was absolutely no evidence of any part of the roof experiencing any uplift whatsoever, let alone being blown off the roof entirely.

D. In my view, the roof contains the correct number of screws, in the sense the number of screws employed by LER to install Mr Syson’s roof generally was sufficient and adequate to ensure the roof’s stability and fitness for its intended purpose. To the extent any identified location was missing an intended screw, I think the time and expense involved in replacing such a screw would be negligible.

j. Were the screws installed properly? [Issue C(e)(x)]

A. It frankly is not clear to me whether this issue, as stated, raises concerns beyond those particular screw-related issues I have addressed elsewhere in these reasons.

B. For example, other portions of these reasons deal with concerns about the number of screws used in the roof’s installation, the suggestion that certain panels were not screwed down tightly enough to prevent gaps, the suggestion that a screw may have been positioned too close to the centre of a valley, the position that certain screws were missing, and/or that screws should not have been applied in a face-mounting manner to certain fascia so as to create alleged cosmetic deficiencies or possible “bleeding” problems in the future.

k. Does the roof system contain excessive gaps? [Issue C(e)(xi)]

A. I already have commented on the suggested existence of excessive gaps in the installed valley system of the roof, and accordingly will not do so again in this context. I will instead focus on the suggested existence of residual gaps in other areas of the roofing system.

B. That issue was addressed by evidence focusing on the alleged existence of specific gaps identified in photographs, and in my view the issue should be addressed and resolved on that basis. In particular, having regard to the burden of proof, I am not satisfied that the existence of particular gaps should give rise to any broader inference that there necessarily are similar gaps elsewhere in the roof.

C. In relation to the gap depicted at the base of the roof panel to the right of “Photograph 13” of Mr Flynn’s report:

1. Mr Flynn opined that the gap should have been sealed with installation of a “universal closure strip” above the eave area, and that the absence of such a strip will allow moisture and insects to enter, particularly as accumulations of ice, and corresponding “ice-damming” conditions, are likely to occur in the nearby eavestroughs. Once again, Mr Flynn opined that the only way of addressing such issues was to remove and replace the entire roof system.

2. However, as noted above, Mr Flynn necessarily was focused on the existence of closure strips visible after installation, whereas Mr Friesen testified, and I accept, that significant valley tape – which appears to function in a manner similar to what Mr Flynn described as a closure strip – was applied beneath such panels in the area of valleys such as this one.

D. In relation to the gap or “hole” depicted in “Photograph 44 and “Photograph 45” of Mr Flynn’s report:

1. In my view there unquestionably is a large opening in the flashing installed by LER in the relevant area. Metal that appears to be uncovered and uncoated, (although perhaps part of the original shingle flashing system left in place under the metal roofing system installed by LER), is visible through the opening.

2. In cross-examination, Mr Friesen acknowledged the existence of that gap or hole, agreed that it should not exist, and acknowledged that such a hole must have been there “from the start”; i.e., that it realistically could not have been created apart from something that occurred during the roof’s installation.

3. Mr Devost testified that he had no recollection of seeing that particular hole during his inspection, but would have reported it if he had. In other words, he too felt that it presented an obvious concern.

4. At the very least, I agree with suggestions that the opening is unsightly, and a poorly finished aspect of the roof installed by LER.

5. However, I also agree with Mr Flynn that, given the particular location of that opening, (i.e., in an area into which multiple valleys channel downward flowing water), the probability of water infiltration through the opening is high.

6. There was no evidence that the opening had resulted in any corresponding leaks or other related roof failure in the five to six years since the roof’s installation – possibly because the underlying original flashings are holding, or the additional underlying flashings and membrane system described by Mr Friesen, (and effectively hidden from view), are working as intended.

7. In my view, the opening nevertheless is sufficiently large, and creates such an obvious potential for water infiltration, that steps should be taken to address and seal that opening.

E. As noted above, in relation to the gap between the two particular panels depicted in Mr Flynn’s “Photograph 17”, Mr Friesen and Mr Devost acknowledged the existence of the relevant gap, but Mr Devost opined that the problem was capable of being remedied effectively by the simple tightening of screws.

l. Does the roof contain cosmetic deficiencies? [Issue C(e)(xii)]

A. This question effectively addresses a number of suggested aesthetic deficiencies in Mr Syson’s metal roof; i.e., the final state of the whisker/returns, dents, scuffs/scratches and missing paint, finishings that were said to be “unsightly”, and caulking that was said to be the wrong colour and/or used in a manner that was said to be inappropriately visible. It was also suggested that gaps in the roofing system employed by LER promoted the possibility of nesting birds.

B. As far as the finished state of the whiskers/returns is concerned, I am not persuaded on a balance of probabilities that the situation represents any cosmetic deficiency warranting any measure of damages. In that regard, I think the aesthetic quality of the final version of the whiskers/returns is something that very much lies in the eye of the beholder, and the situation is not categorically unsightly. However, apart from the more objective testimony of Mr Friesen and Mr Devost, indicating that the revised character of the whiskers is more in keeping with industry standards than the original bulky finish created by use of roofing panels similar to those used elsewhere on the roof, I am influenced strongly by Mr Syson’s notable failure to include any complaint about the revised whiskers/returns in his complaint to the Better Business Bureau; a complaint registered after completion of the final work done to the whiskers/returns. To me, that suggests that Mr Syson actually was not unhappy with the final appearance of those whiskers/returns.

C. As far as dents are concerned:

1. There were a number of dents visible in some of the photographs presented at trial, depicting the state of Mr Syson’s roof. For example, such dents or “crimples” are visible in “Photograph 22” of Mr Flynn’s report.

2. However, I also think it fair to say that some of those dents were relatively minor; e.g., to the extent where they were not immediately noticeable in some photographs, without looking very carefully or without looking at the same areas depicted in photographs taken from another angle.

3. Each of the witnesses called by LER effectively acknowledged that the existence of noticeable dents was something that detracted from the aesthetics of a metal roof. That is why those working for LER take considerable care during installation and inspections to avoid the creation of such dents, (e.g., by stepping on areas of the roof not supported by strapping underneath, or the dropping of heavy tools or other items), and to address and remedy any noticeable dents prior to the roof’s completion.

4. Mr Friesen emphasized that most small dents, (except those on sharp corners), were capable of correction by temporary removal or lifting of a relevant panel and bulking or tapping the dent out from underneath using a hammer or something softer.

5. Moreover, Mr Friesen also emphasized in his testimony that he and his team did not leave visible dents behind when their work was completed. In that regard:

a. Mr Friesen testified and I accept that, prior to his team members finishing their work on Mr Syson’s house, they had removed and replaced approximately six roofing panels with visible dents in them, (even though it was Mr Friesen’s belief that they had not caused all of those dents), because they wanted to please Mr Syson and it was their standard practice to ensure the leaving of no dented roof panels upon completion of their work.

b. When taken to photographs depicting particular dents in Mr Syson’s roof, Mr Friesen was adamant there was “no way” he and his installation had created or left such dents. He was “one hundred percent” certain he would have fixed such dents, and that he “would never have left” such dents in Mr Syson’s roof. In his view, such dents had to have been caused by someone or something else.

c. In relation to other minor dents, (e.g., those identified by Mr Syson’s counsel in “Photograph 41” of Mr Flynn’s report), Mr Friesen acknowledged that they might have been made by hard shoes or the dropping of a tool, but noted that such dents also might very well have been caused by items such as broken branches dropping from the tall trees neighbouring that area of Mr Syson’s roof.

6. In his independent testimony, Mr Devost explained why some initial denting was almost inevitable in the course of roof installations, and how LER’s standard practice is to “massage out” noticed dents where that is possible, and replace dented panels if the dent is more extreme, (e.g., certain “creases”), where such severe dents cannot be massaged and/or may jeopardize the roofing material and warranty. He emphasized that it was standard practice to check for such dents during his final inspections, and that he would have raised issues in that regard had there been any noticeable dents. In relation to the dents drawn to his attention during cross-examination by counsel for Mr Syson:

a. Mr Devost felt that some of the dents were either not noticeable or minor blemishes.

b. In any event, Mr Devost was confident that the most if not all of the dents drawn to his attention by Mr Syson’s counsel were capable of being “massaged” out to 95 percent of normal; e.g., by temporarily lifting the edge of a panel, and using a rounded hammer to work the metal back into position. There were only one or two dents he was not sure about, and that uncertainty stemmed from the quality of the photographs depicting the particular situations that might need to be addressed.

c. While lifting of the relevant panels might or might not require removal of certain flashings, Mr Devost was sure such flashings could then be reused.

d. Mr Devost thought the work required to repair the indicated dents would take approximately half an hour.

7. Moreover, I am mindful that simple demonstration of the existence of dents in Mr Syson’s metal roof would not be sufficient to establish LER’s responsibility in that regard, without proof on a balance of probabilities that the relevant dents had been caused by LER. In my view there is reason for skepticism in that regard, such that I am not willing to find LER responsible for such dents. Without limiting the generality of the foregoing:

a. As noted above, Mr Friesen was adamant that he and his team would not have left the more pronounced and visible dents in the roof when they completed work on the project, and that he personally would have ensured that the dents were corrected or that relevant panels were replaced. Again, it was his view that such dents must have been caused by someone else, and he noted that dents might have been caused in other ways; e.g., by items falling onto the roof from taller trees located near to Mr Syson’s roof.

b. Mr Devost testified that he had no recollection of walking or standing, or of Mr Razpla walking or standing, on the relevant dented areas of the metal roof at the time of their inspection. Moreover, one of the tasks involved in a final inspection is to look for such dents, and no such dents were noticed at the time.

c. Finally, I think it telling that photographs taken by Mr Friesen of Mr Syson’s completed roof, before Mr Friesen’s final departure from the property, show that there were no dents in areas of the roof where dents were visible in photographs taken by Mr Flynn at the time of his inspection several years later.[^45]

D. As for concerns about scuffs/scratches and/or missing paint:[^46]

1. Pointing to areas in certain photographs, (e.g., such as Photograph 21 of his report), Mr Flynn suggested that scratches and/or missing paint was a noticeable problem in certain areas of the roof. In particular, he pointed to some small areas where the surface appeared to have areas of colour lighter than the remainder of the surrounding roof panels.

2. In cross-examination, Mr Friesen acknowledged that, during the installation process, it was possible for black scuff marks to be left on panels through wearing of inappropriate footwear, and for scratches to be created by an installer wearing a shoe with a rock stuck in the tread.

3. However, for numerous reasons, I was not persuaded on a balance of probabilities that installation of the metal roof supplied by LER resulted in any significant scuffs/scratches or missing paint. Without limiting the generality of the foregoing:

a. Mr Friesen emphasized that he makes his installers wear soft shoes not giving rise to any such scuff marks, and in my view the evidence did not suggest or support a conclusion that scuff marks presented any real concerns in this case.

b. Mr Friesen testified that, in the course of roof installations, he and his installers are equipped with paint that is the same colour as the roof being installed, and use that to “touch up” any noticeable scratches.

c. Mr Malec testified, and I accept, that the particular components used in the installation of Mr Syson’s roof generally are not prone to noticeable scratching. In particular:

(a) The metal components applied to Mr Syson’s roof were a premium product, with a paint thickness exceeding 50 microns; a thickness substantially exceeding the standard paint thickness of 28 microns found on many metal products. LER is, in fact, the only metal roofing company that supplies such a product; and

(b) LER’s metal roofing components are to some extent “self-healing”, as far as possible scratches are concerned, insofar as the products have a unique zinc coating which migrates, when exposed to weather conditions effectively producing positive and negative currents, “like a battery”.

d. In support of his assertion that there were scratch marks and/or missing paint on the roof installed by LER, Mr Flynn did not point to any documented areas of any markings in the nature of a pronounced or extended line usually contemplated by the term “scratch”. He instead focused on certain areas that appeared to be lighter in colour than other surrounding areas of the roof. However:

(a) I think it noteworthy that such areas, identified by Mr Flynn, and which I see elsewhere in the photographs tendered at trial, generally seem to be located consistently and rather uniformly near the lower edge of panel elevations.

(b) In my view, the locations in which such lighter areas are observable are not areas where an installer realistically would or could have stepped to create scratches without leaving corresponding weight indentations as well.

(c) Moreover, Mr Malec testified, and I accept, that when the manufactured metal roofing products supplied by LER fade over time through significant exposure to sunshine, they generate a white powder in a process known as “chalking”, (a process that would have been covered by the manufacturer’s warranty had Mr Syson rendered full payment to LER of the agreed contract price), and it seems to me that the lighter areas identified and relied upon by Mr Flynn are locations where one might reasonably expect such powder or chalking to accumulate temporarily through the operation of gravity and/or modest downward flowing moisture.

(d) Having regard to such realities, I am not satisfied that the lighter areas identified and relied upon by Mr Flynn were in fact scratches, as opposed to accumulations of chalking, or represented anything other than a normal condition of the roof that would have been addressed, if and as necessary, by the warranty Mr Syson would have received had LER received full payment of the agreed contract purchase price.

E. As for concerns related to “unsightly” finishing:

1. Mr Flynn drew attention to portions of what he described as “fascia” and Mr Friesen described as “gable trim”, (i.e., metal trim that extended vertically downwards and then horizontally inwards at the top edges of the roof), and opined that such a practice was unusual and unattractive, insofar as portions near the peak were completed with smaller pieces. Mr Flynn also opined that the application of screws to the “face” or vertical portions of such trim was similarly uncommon, and something likely to produce unsightly “bleeding” of rust streams flowing downwards from such screw locations over time. In my view, however, such concerns were exaggerated and/or not supported by the evidence. Without limiting the generality of the foregoing:

a. Mr Friesen testified, and I accept, that the relevant gable trim could not be completed with uninterrupted pieces because the relevant “bender” components used to complete such work are available only in eight-foot lengths. In my view, if some visible interruption of the gable trim therefore was unavoidable, it made sense to locate the interruptions at the highest areas of the roof peaks, which in turn reduced the likelihood of their being visible or noticed from someone standing on the ground.

b. In my view, the finishes near the top of each gable peak generally were symmetrical, and not particularly noticeable in anything but close up photographs.

c. Mr Friesen testified, and I accept, that placement of fasteners on the face of such gable trim was a usual industry practice, and correct.

d. There was no evidence of any “bleeding” from the face-mounted screw locations depicted in the photographs tendered at trial.

e. Mr Friesen testified, and I accept, that he has not experienced any visible “bleeding” of such face-mounted fasteners, (e.g., through rust or other discolouration flowing downwards from such fasteners), during his many years working on metal roofing. In that regard, Mr Friesen also emphasized that rubber washers had been used in relation to all the relevant face-mounted fasteners identified in the relevant photographs, rendering such areas “completed sealed” from any water penetration that might promote rusting.

f. Mr Malec testified, and I accept, that the screw fasteners employed in the installation of LER’s metal roofing are premium “self-tapping” screws that do not promote or permit the sort of visible “bleeding” and staining contemplated by Mr Flynn. To the contrary, the screws are specially designed for the roofing industry. The screws have a zinc coating that prevents the screws themselves from rusting. They also have a special coating called “Climaseal” which, together with specially designed tapering of the screws, creates a thread that tightly and effectively seals the area between the screw and the opening made by the screw. In the result, there really is little or no possibility of pitting or contact between the relevant aluminum and/or steel components of the roof, or bleeding of moisture carrying rust or other particles through the screw opening. In rare cases, a screw might be prone to rusting if its coating was broken by stripping of the relevant screw head, but that usually is addressed at the time such a screw happens to be stripped; i.e., by the relevant installer replacing the stripped screw with another one. Moreover, if such a screw or screw opening did somehow start to rust or give rise to the sort of “bleeding” contemplated by Mr Flynn, (which Mr Malec has never seen), the situation would have been covered by the warranty Mr Syson would have received had he paid the contracted purchase price for the roof.

2. Mr Flynn opined that certain detailing of the roof was poorly done and unattractive. In that regard:

a. In addition to the cosmetic details of certain valleys discussed above, Mr Flynn also noted, in particular, the unattractive nature of work depicted and specifically identified in “Photograph 9”, “Photograph 29”, “Photograph 38”, “Photograph 42” and “Photograph 43” of his report. In that regard, Mr Flynn laments the absence of straight and/or flush cuts, and the presence of finishing characterized by folds and bends apparently fashioned by hand without the use of progressive tools.

b. In assessing such complaints, I bear in mind what I considered to be common sense realities, emphasized in the testimony of Mr Malec, that the very nature of metal creates certain limitations on what realistically can be done to make generally straight and sturdy metal conform perfectly to the contours of a roof designed by an architect who likely had more malleable shingles in mind.

c. In his testimony, Mr Friesen effectively confirmed that the photograph at p.146 of Exhibit 2 at Tab 20, as well as “Photograph 9” and “Photograph 38” from Mr Flynn’s report, depicted the same protrusion from Mr Syson’s roof, visible from the street, which Mr Friesen characterized as a “hip going to a gable”. However, in cross-examination, Mr Friesen strongly disagreed with the suggestion that the finishing in the area was “unsightly”.

d. Mr Friesen also conceded that some of the whisker/return trim depicted in “”Photograph 29” of Mr Flynn’s report was not cut evenly or flush with other aspects of the trim, resulting in some aspects of the trim protruding horizontally from others, and/or further down into the eavestrough than others – although he emphasized that some of the uneven aspects had a functional purpose, (e.g., because the eavestrough in that particular area was lower), and that the relevant aspects of the work would never be visible from the ground.

e. I agree with the suggestion that some of the wall mounted flashing done in relation to the whiskers/returns, (as depicted in “Photograph 31” of Mr Flynn’s report), seems excessive, particularly since the areas in question, positioned under the overhanging roof above and at the back of the protruding whisker/return, seem unlikely to be the subject of much falling or wind-driven moisture.

f. More generally, I accept that some of the aesthetic concerns raised and described above had merit, but also think they did not have the significance suggested by Mr Syson, Mr Flynn or Mr Syson’s counsel. For example:

(a) While I agree that the protruding “hip going to a gable” is visible from the ground surrounding Mr Syson’s house, and that a close-up detail of the work done on the upper bend of that protrusion is unattractive, (e.g., insofar as it has a number of visible and uneven metal folds over the end of the area), I am not persuaded that the defects would be particularly noticeable from a distance.

(b) In my view, the areas of admittedly “crimpled” or crudely bent steel located in various valleys of the roof, (e.g., as depicted in “Photograph 42” of Mr Flynn’s report), would not readily be noticeable to anyone not standing on a ladder to closely examine the roof. Moreover, I accept the testimony of Mr Friesen that, if the aesthetics of such an area were unacceptable, they could be addressed by a rather uncomplicated process of temporarily lifting the surrounding sheets to repair or replace the relevant valley sheeting. Even in an area such as that depicted in Photograph 42 of Mr Flynn’s report, (i.e., where several valleys converge), Mr Friesen indicated that the desired cosmetic repair, with another custom-made valley piece receiving more elaborate attention, would take no more than two to three hours.

(c) Similarly, (and as noted by Mr Friesen), the cosmetic defects depicted in “Photograph 29” of Mr Flynn’s report are unlikely to be noticed by anyone looking up to the area from the ground.

(d) As noted above, the slightly excessive wall mounted flashings of the whiskers/returns are located at their rear, (i.e., closer to the walls of the house than the street), and in my view are not particularly noticeable having regard to the nature of the whiskers/returns.

F. As for cosmetic concerns related to caulking:

1. In my view, there really is no question that some of the caulking used on Mr Syson’s roof has a colour which, either initially or over time, is a poor match for that of the roof’s metal components, in places where it is visible. In that regard:

a. Mr Friesen acknowledged in his testimony that a general objective during such metal roof installations is to keep visible caulking to a minimum; e.g., by ensuring that caulking applications generally are underneath or behind components of the roofing system, unless it is absolutely necessary to do otherwise.

b. Mr Friesen also conceded that caulking used on Mr Syson’s roof properly should have been the same colour as the roofing metal, and it occasionally was not. However, he was obliged to use the caulking which LER had supplied and shipped to the job site.

c. In his testimony, Mr Malec acknowledged that the caulking employed by LER comes from a factory, where efforts are made to match the colour of the caulking to that of the metal roofing components as much as possible, but it does not always work out that way as the metal roofing sheets are a very unique product with a unique colour, such that matching the colour of the caulking “is almost impossible”. In the result, Mr Malec said, the colour of supplied caulking is sometimes “a little bit off”.[^47] While it is possible to use “clear caulking”, (i.e., caulking with the same adhesive properties that nevertheless has no colour), LER has found that customers generally do not like clear caulking as it “looks horrible” and creates an impression that areas are not finished.

d. Some photos, (such as those at Tab 20 of Exhibit 2, at pages 161 and 162, taken by or on behalf of LER), show caulking, applied to what seems to be the original versions of the whiskers/returns, that is reddish pink and therefore noticeably different in colour from the metal components of the surrounding roof system. However, Mr Friesen testified that such caulking was removed, along with the original metal work done on the whiskers or returns, in part because Mr Syson did not like that visible caulking. Mr Friesen testified and I accept, (based on photos of the whiskers/returns in their final form), that care was taken to ensure that caulking applied in the further work done on the whiskers/returns was placed behind the relevant flashings, and therefore effectively concealed from view.

e. Some photos, (such as those at Tab 21 of Exhibit 2 at page 204, depicting the lower termination of a particular valley), nevertheless show that some of that reddish pink caulking used to seal areas of the roof remains in place, and Mr Friesen candidly acknowledged that it remains visible from the ground.

f. Later photos, (such as Tab 21 of Exhibit 2, at pages 207, 210 and 211, as well as “Photograph 13” and “Photograph 21” taken by Mr Flynn), show areas of applied caulking that looks almost white, in marked and even greater contrast - even from a distance - to the colour of the metal around it. In his testimony, Mr Friesen explained why applications of such caulking were necessary or at least advisable to make the relevant areas watertight; e.g., with visible caulking being required to seal unusual valley areas, hollow ridge cap endings and flashing meeting an area of the upper deck railing, or being applied through an abundance of caution to help prevent water penetration near adjoining ridge caps.

2. Having said that, photographs depicting the entirety of the roof suggest that such areas with visible caulking markedly different in colour from the rest of the metal work affect only limited and particular areas of the roof. In other words, the vast majority of the roof system does not, in my view, exhibit such visible caulking blemishes. In that regard, it seems the vast majority of caulking applications described by Mr Friesen are indeed effectively hidden underneath and/or behind the metal components, (e.g., the roofing panels and flashing), of the roofing system. That seems entirely consistent with Mr Friesen’s testimony indicating that, as Mr Syson had expressed a dislike for the colour of the caulking, the caulking was deliberately applied behind the visible trim and flashings, and squeezed into wall openings as required, to effect all the necessary seals.

3. Moreover, even where the caulking is applied in exposed areas, and readily visible in the photographs tendered at trial, it seems to me that such caulking will not always be readily noticeable from the ground; e.g., where it has been applied to the “uphill” edge of stove or bathroom exhaust vents on the roof, (apparently in an effort to prevent the infiltration of water flowing towards toward such exhaust vents), or in valley areas which have been photographed from the vantage point of someone using a ladder to reach the eaves of the roof.

4. For such reasons, while I think there are legitimate concerns about the manner in which visible caulking used to finish Mr Syson’s metal roof detracts from its aesthetic quality, I do not think such visible caulking is of a nature or extent whereby the general cosmetically appealing character of the roof is significantly or fundamentally compromised; e.g., to the point of warranting replacement of the roof or its affected components.

G. As for concerns raised in relation to gaps in the roof promoting nesting by birds:

1. As Mr Friesen and Mr Malec both conceded, it might be possible for birds to nest in such gaps of the roof, which in turn might lead to some bird droppings landing on the roof where that might not otherwise be the case.[^48]

2. However, to the extent such droppings made their way to visible areas of the roof, (i.e., as opposed to the inside of such gaps), it seems to me that would happen in areas inherently prone to being flushed regularly by downward flowing rainwater drainage.

3. Moreover, I accept Mr Malec’s testimony that, if such gaps and the possibility of nesting presents any serious concerns from Mr Syson’s perspective, a mesh product called “Flex-O-Vent” is readily available in different sizes, and capable of easy application, to prevent any invasive nesting in such areas. That too is a product and service that would have been included in the warranty Mr Syson would have received, had he paid LER the full agreed purchase price of the metal roof installation. In the current situation, I think such gaps are capable of being addressed as a relatively simple way, if Mr Syson is seriously concerned about them.

H. I think it noteworthy that Mr Malec, during the course of cross-examination, grudgingly acknowledged that there probably were cosmetic issues with the roof Mr Syson received, and that a number of them probably could be seen from the ground, although Mr Malec thought such cosmetic deficiencies were “small”. In that regard, Mr Malec nevertheless emphasized his view that, while such cosmetic deficiencies might have warranted some form of discount on the price to be paid by Mr Syson, (if he was not happy with the way his roof looked), they had nothing to do with proper functioning of the roof, which was LER’s primary concern.

m. Is the roof system design faulty, such that it increases the risk of water backup, leaks, ice formations? [Issue C(e)(xiii)]

A. I note that the question as framed focuses on whether the design of the roof system, (i.e., as opposed to possible deficiencies brought about in particular areas during the roof’s installation), increases the risk of such problems. In other words, the question does not focus on the possibility of such conditions occurring as a result of particular incidental failings, (such as an unintended hole), created during the roof’s installation.

B. As far as the roof’s design is concerned, the suggestions of water backup, leaks and ice formations emphasized by Mr Flynn seemed focused on the manner in which roof panels stopped short of the eavestroughs, and the possibility of water backing up under areas of panels at their lower end, or their areas overlapping valley sheets, where gaps had been left between the panel and the metal components underneath.

C. However, it seemed to me that such concerns do not take into account the design of the unique starter and valley sheet components designed and employed by LER, and the methods used by LER’s installers to seal the valleys beneath the overlapping sheets of paneling, both of which understandably were not visible to Mr Flynn during his inspections. In particular, as noted above, the particular “starter” system developed and employed by LER is not only purposely designed to slow water descending from higher panels and direct it into eaves-troughing, but also has a hidden “kick” or raised portion, (not visible after the installation of supervening sheet panels), that inhibits/prevents potentially destructive water back up and ice-damming. Similarly, in his testimony, Mr Friesen described not only the extensive use of valley tape to effectively seal areas, but the existence of what he described as “under hip” elevations, positioned two to three inches inside some visible gaps, that effectively block the potential back flow of water. Mr Malec, in addition to emphasizing those aspects of LER’s roofing system, emphasized the elevated “kick” running near and parallel to the sides of valley sheets, which perform a similar function.

D. Having regard to such considerations, I am not persuaded that the answer to this particular question is anything but “no”.

n. What is the impact of any deficiencies found in subparagraphs (i)-(xiii), [i.e., Issues C(e)(i) to C(e)(xiii)], on the roof? [Issue C(e)(xiv)]

A. In my view, none of the established deficiencies in the metal roof, installed by LER, caused it to be rendered generally unfit for its intended purpose; i.e., providing a weather barrier sufficient to prevent precipitation from leaking into the residence, while allowing such precipitation to shed properly off the roof of the house. In my view, the established deficiencies or defects do not substantially or significantly compromise or undermine the basic integrity and function of the roof.

B. To the extent established deficiencies involve structural defects, in my view they are not deficiencies that interfere with the functioning of the roof to the extent they require removal and replacement of the roof. The deficiencies generally are capable of being addressed in a satisfactory manner by incidental attendances to effect remedial work in the nature of replacement screws, additional screws, tightening of screws, additional trimming around valleys, modest realignment of panels, or additional patching, additional caulking, and/or caulking maintenance. Additional remedial work and flashing also will be required to address the more substantial gap or hole identified in Photograph 44 of Mr Flynn’s report.

C. To the extent the established deficiencies involve purely cosmetic or aesthetic concerns, they do not interfere with the proper structure or functioning of the roof. They nevertheless do compromise, (albeit to a modest extent in my view), the “curb appeal” and enhanced aesthetic value that was promised to Mr Syson by LER, as an inducement to enter the contract for installation of a metal roof.

o. Was the Plaintiff/Defendant to Counterclaim [LER] responsible for reinstating the deck railing system? [Issue C(e)(xvi)]

A. The written contract between the parties says nothing whatsoever about Mr Syson’s deck, its railing, or the completion of any form of woodwork by LER.

B. There is no question that a section of the original railing surrounding an elevated deck, at the rear of the house, was removed during the course of installing the LER metal roof on Mr Syson’s house. Mr Friesen candidly acknowledged that he and his installation team removed it because:

1. part of the original railing system surrounding the elevated deck was positioned over a section of the sloped roof extending out from between upper and lower stories of the house, as depicted in the upper photograph found at Exhibit 2, Tab 21, page 201;

2. the original balustrades/spindles extending vertically downwards from the horizontal handrail went right down onto the shingles of the original roof;

3. installation of the metal roof on top of the shingle roof raised the level of the roof by approximately three-and-a-half inches, such that the original railing system could not be put back into its original location; and

4. at a minimum, carpentry work would be required to modify the original balustrades/spindles by cutting them down to an appropriate size.

C. Mr Syson acknowledged, in cross-examination, that removal of the relevant deck railing was necessary to complete the contemplated roof installation.

D. No one disputed that, (as Mr Flynn emphasized), absence of a complete railing system on the relevant deck gives rise to a safety issue, especially having regard to the significant elevation of the deck,