BRACEBRIDGE COURT FILE NO.: CV-14-158 DATE: 20200602 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER LEE WHITE Plaintiff – and – THE CORPORATION OF THE TOWN OF BRACEBRIDGE and MARK GRAND Defendants

Counsel: David A. Morin and Peter M. Reinitzer, Counsel for the Plaintiff B. Robin Moodie and T. Casement, Counsel for the Defendant, The Corporation of the Town of Bracebridge Mark Grand, Self-represented

Heard: November 26-29, December 2 & 6, 2019 at Bracebridge

REASONS FOR JUDGMENT

DiTOMASO J.

INTRODUCTION

[1] On March 29, 2012, the Plaintiff Christopher Lee White purchased a house and property from the Defendant Mark Grand. After Mr. White took possession and moved into the house, he undertook some repairs. He noticed the house was cold. He also experienced some damage from ice damming on the roof. Further investigations by Mr. White revealed alleged building deficiencies on the part of Mr. Grand who had renovated the house and had constructed an addition.

[2] As a result, Mr. White commenced this action against Mr. Grand claiming damages for negligent construction and for breach of the Ontario Building Code. Mr. White also claims damages against the Defendant The Corporation of the Town of Bracebridge for negligence and/or breach of its statutory duty pursuant to the Ontario Building Code.

[3] Mr. White claims that as a result of the actions of Mr. Grand and the Town of Bracebridge, he has suffered loss for which these defendants are jointly and severally liable.

[4] Mr. Grand and the Town of Bracebridge deny Mr. White’s claims and further allege that if Mr. White sustained damages, same were caused or contributed to by his own negligence. As well, they allege Mr. White failed to mitigate his damages.

[5] Mr. Grand and the Town of Bracebridge have crossclaims against each other. The Town of Bracebridge specifically crossclaims against Mr. Grand for contribution and indemnity regarding the damages resulting from any of the construction deficiencies, whether conceded or disputed, to the extent it is found liable for the latter.

OVERVIEW

[6] The following is not in dispute.

The Parties

[7] The Plaintiff Christopher Lee White (“White”) is the registered owner of a residential property known as 1023 Speicher Lane, Gravenhurst, Ontario (the “Property”) purchased from the Defendant Mark Grand (“Grand”) on March 29, 2012.

[8] Mr. Grand, former owner of the Property constructed a large addition and renovated the Property immediately prior to his sale of the Property to Mr. White. At the time of the sale, his construction work was ongoing.

[9] The Corporation of the Town of Bracebridge (the “Town”) is a municipal corporation located in the District of Muskoka. The Property is within the jurisdiction of the Town.

The Purchase of the Property by Mr. White

[10] Mr. White purchased the Property from Mr. Grand pursuant to an Agreement of Purchase and Sale (the “APS”) signed January 15, 2012, with a closing date of March 28, 2012. The purchase price was $249,900. Mr. White paid a total of $12,600 and paid the balance of the purchase price and ancillary costs of $243,300 by way of mortgage.

[11] When Mr. White first saw the Property in early January 2012, it was in the midst of construction activity. Mr. White saw a building permit posted on the Property but did not read it. Mr. Grand was in the process of renovating the Property and adding a two storey addition on the south end. Some of this construction was being conducted pursuant to the building permit issued to Mr. Grand by the Town for the construction of the addition. Some construction was not.

[12] Mr. White agreed to purchase the Property on the basis that the construction would be completed by the time the transaction closed and conditions were placed in the APS to ensure this would happen, including that the construction passed a final inspection. The APS was also conditional upon Mr. White obtaining a satisfactory home inspection and financing. The purchase was to close on March 28, 2012 but the closing was extended to March 29, 2012.

[13] Mr. Grand requested a final inspection which the Town’s building department duly conducted and ultimately passed. Previously, the Town had conducted a number of inspections during the course of Mr. Grand’s construction pursuant to the building permit it had issued to Mr. Grand.

2014 Water Damage, Engineering Investigations and Cost of Repairs

[14] In March 2014, Mr. White noticed water marks on the wall and landing area around the stairs of the house. In April 2014, upon further investigations by a contractor, he was advised that the water was entering the house through the cathedral ceiling in the new addition.

[15] A further investigation into the nature of construction defects identified numerous deficiencies and infractions of the Ontario Building Code (“OBC”) associated with Mr. Grand’s construction activities that the Town failed to identify during its building inspections.

[16] The roof leak led to an engineering investigation in mid-2014. Mr. Koerth, P Eng. was retained on behalf of Mr. White. Mr. Koerth prepared a report identifying deficiencies and specifying a scope of work necessary to fix those deficiencies in order to bring the Property into compliance with the OBC.

[17] Mr. White effected temporary repairs to prevent further water infiltration. First General Muskoka (“FGM”), a contracting firm in Muskoka was retained to identify the cost necessary to effect the scope of work recommended by Mr. Koerth. Mr. Ron Dahl, principal of FGM provided a cost estimate to complete the repairs in accordance with Mr. Koerth’s scope of work in the amount of $193,788.

[18] The Town retained engineer Mr. Terry Smith, P. Eng. Mr. Smith agreed with Mr. Koerth regarding some but not all of the deficiencies set out in Mr. Koerth’s report. The cost of repair for some of these deficiencies is also in dispute. C2C Contracting Collingwood (“C2C”) was retained by the Town to prepare an estimate for repair work. Mr. Warren Haist of C2C prepared the estimate in the amount of $48,713.59.

[19] Generally, what are the deficiencies, who is responsible for the deficiencies and what is the cost of repair payable by the responsible party are the live issues in this trial between Mr. White, the Town and Mr. Grand.

The Limitations Act

[20] While both Mr. Grand and the Town alleged in their pleadings that this action is statute-barred under s. 4 of the Limitations Act, S.O. 2002, c. 24 as amended, this was not an issue advanced at trial. No submissions or arguments were made by anyone at trial on this point.

[21] Given the position of Mr. White and the Town at trial about the deficiency issues and Mr. Grand’s non-attendance, I conclude that the limitation issue is no longer a matter in dispute. As such, I find that I am no longer required to determine this question and whether Mr. White’s action is statute-barred is no longer relevant.

POSITION OF THE PARTIES

Position of Mr. White

[22] Mr. White’s position at trial is that both Mr. Grand and the Town share responsibility for all of the construction defects. Mr. Grand’s responsibility is based in contract and on his duty of care owed to subsequent property owners, pursuant to the decision of Winnipeg Condominium Corporation No. 36 v. Bird Construction Company, [1995] 1 SCR 85 to build in accordance with the OBC and not to create building defects that pose a danger to the buildings occupants. Further, Mr. White submits that the Town’s responsibility is based on its obligations under the OBC as set out in Ingles v. Tutkaluk Construction Ltd., [2000] 1 SCR 1068, at para. 18 to appoint inspectors, inspect construction projects and enforce the provisions of the Building Code Act.

[23] Mr. White claims general damages and there are crossclaims in addition to the claim for damages relating to the deficiencies. The Town concedes that some OBC deficiencies should have been found by the Town’s inspectors during the staged building inspections under the permit issued to Mr. Grand on August 31, 2011 (Building Permit #11-272) for the construction of the addition to the Property (the “conceded deficiencies”). The Town would have required Mr. Grand to repair those deficiencies at his expense if they had been caught.

Position of the Town of Bracebridge

[24] The Town disputes it is liable for damages resulting from the remainder of the OBC deficiencies alleged by Mr. White because they were outside the scope of the building permit or they would not have been seen by the Town’s inspectors on reasonable inspection or they were not deficiencies in any event (the “disputed deficiencies”).

[25] The Town also maintains that the cost to repair the disputed deficiencies is also Mr. Grand’s responsibility. Specifically, the Town maintains that deficiencies arising in the renovation of the original part of the house, for which Mr. Grand took out no permit, are Mr. Grand’s responsibility. The Town crossclaims against Mr. Grand for contribution and indemnity for the damages resulting from any of the deficiencies whether conceded or disputed to the extent the Town is found liable for the latter.

Position of Mr. Grand

[26] As for Mr. Grand, he denies in his statement of defence that there are any deficiencies or that, in the alternative, Mr. White, the Town or unnamed other parties caused those deficiencies. He has advanced a crossclaim against the Town. Mr. Grand has not retained an expert to respond to the findings of Mr. Koerth, Mr. Smith or the cost of repair estimates prepared by Mr. Dahl and Mr. Haist.

[27] While originally represented by counsel, Mr. Grand became a self-represented litigant as the matter proceeded to trial. In fact, Mr. Grand left Ontario for British Columbia. Although duly notified by the Trial Office (and Mr. White’s counsel) of the upcoming trial, Mr. Grand advised he would not be returning to Ontario and would not participate in the trial. He was made fully aware that there would be consequences for his not attending the trial in this matter. As expected, Mr. Grand did not attend or participate in this trial.

THE PROCEEDINGS AT TRIAL

[28] The trial of this matter took place over six days. Mr. Grand did not attend or participate in any way at trial. Subsequent to closing oral submissions, Mr. White and the Town delivered written closing submissions.

[29] At trial, Mr. White testified about how he came to purchase the Property and how he discovered the deficiencies in Mr. Grand’s construction work – both in the renovations Mr. Grand did to the existing structure and in the construction work associated with the addition.

[30] Further, Mr. White testified about his involvement with the Town and how there were deficiencies in the construction work both regarding the main structure (original house) and the addition which the Town had failed to note. He gave evidence about how he came to retain his engineer expert, Mr. Koerth who identified the deficiencies and set out a scope of work. He testified that Mr. Dahl, building contractor, was also retained to cost the scope of work determined by Mr. Koerth.

[31] Mr. White also testified about certain repair work he did with the help of others. Further, he testified that he had suffered general damages as a result of the negligence of the defendants Mr. Grand and the Town.

[32] As stated, Mr. Koerth testified at trial. He identified the deficiencies and set out a scope of work to repair those deficiencies. Mr. Dahl of FGM also testified at trial as to the cost of repairs set out in Mr. Koerth’s scope of work.

[33] On behalf of the Town Mr. Tom Hookings, Chief Building Official for the Town testified about the Town’s involvement with Mr. Grand’s application for a building permit to construct an addition to the Property.

[34] He testified about the Town’s various inspections, some deficiencies that were found, which Mr. Grand rectified and some deficiencies that were missed by the Town (conceded deficiencies).

[35] He testified that some of the construction work carried out by Mr. Grand on the existing structure was not work permitted under the building permit issued by the Town to Mr. Grand for the construction of the addition (disputed deficiencies).

[36] Mr. Terry Smith, P. Eng. testified on behalf of the Town. He gave evidence about the conceded deficiencies, deficiencies which ought to have been found by the Town for which the Town was responsible. He testified about disputed deficiencies for which the Town was not responsible. Lastly, he testified about certain construction work which was not deficient at all.

[37] Mr. Smith testified about conducting certain remedial work which differed in method from the scope of work recommended by Mr. Koerth. Also, Mr. Haist of C2C testified about the costs to repair OBC deficiencies based on the remedial work identified by Mr. Smith. The cost of these repairs was disputed.

[38] At trial, Mr. White’s counsel read in excerpts of the evidence of Mr. Tom Hookings and Mr. Grand from their examination for discovery transcripts.

[39] In addition, there were a number of exhibits at trial which were referred to during the course of the trial by counsel and the witnesses.

THE ISSUES

[40] The issues in dispute are as follows:

(a) Mr. Grand (i) Is Mr. Grand liable to Mr. White in contract and in tort for failing to construct the Property in accordance with the requirements of the OBC? (ii) If so, what is the proper measure of damages?

(b) Town of Bracebridge (i) Is the Town liable to Mr. White for the negligent inspections of Mr. Grand’s construction work? (ii) If so, are there any damages arising from the construction work for which the Town is not jointly and severally liable with Mr. Grand?

(c) Was Mr. White contributorily negligent?

(d) Is Mr. White entitled to general damages and special damages for alternative living expenses?

(e) What is the extent to which the Town can recover on its crossclaim against Mr. Grand?

ISSUE: (a) Mr. Grand (i) Is Mr. Grand liable to Mr. White in contract and in tort for failing to construct the Property in accordance with the requirements of the OBC?

[41] For the following reasons, the answer to this question is yes.

The Liability of Mr. Grand for Negligent Construction

Duty of Care

[42] It is well-established that contractors who design and construct a building owe a duty of care to subsequent purchasers if it is foreseeable that a failure to do so would lead to defects that pose a danger to the health and safety of the occupants. Winnipeg Condominium Corporation No. 36 v. Bird Construction Company, [1995] 1 SCR 85, para. 43 It is reasonably foreseeable that negligent construction resulting in latent defects may result in injury or damage to other property owners when those defects manifest themselves.

[43] There is no dispute that Mr. Grand designed and constructed the addition and renovations at the Property. He owed a duty of care to Mr. White.

[44] As for the addition, such construction is evidenced by Mr. Grand’s Application for Permit to Construct or Demolish, the Building Permit #11-272 issued August 31, 2011 and Mr. Grand’s plans.

[45] I find Mr. Grand owed a duty of care to Mr. White.

Standard of Care

[46] It is also well-established that the duty of care owed by Mr. Grand to Mr. White is to take reasonable care in constructing the Property. Winnipeg Condominium Corporation No. 36 v. Bird Construction Company, [1995] 1 SCR 85, para. 43

[47] What is reasonable care?

[48] The OBC provides minimum standards for construction so that owners of houses will be safe from poor construction. The standard of care is, at a minimum, the Ontario Building Code’s requirements. Danyliw v. 57893 Ontario Limited, 2006 ONSC 13101, para. 72 At trial, Mr. Koerth testified that the minimum standards in Part IX of the OBC could not be ignored without risking the safety of the building’s occupants. In Baker v. York (Regional Municipality), 2006 ONSC 81804, para. 23, Justice Lack noted that these are only minimum requirements and that a defendant’s duty of care may be breached even where there is no breach of the OBC.

[49] It is uncontested that Mr. Grand was required to comply with the OBC at a minimum. Save for a relatively few number of items, that I will review, the experts agree that the bulk and significant number of deficiencies identified by Mr. Koerth breached the OBC and thus the standard of care owed by Mr. Grand. I agree with that position and with the evidence supporting it.

Breach of the Duty of Care

[50] Again, with certain exceptions, both expert engineers agreed that there were undisputed or conceded OBC deficiencies and there were deficiencies in dispute as to whether they were OBC deficiencies or deficiencies at all. I find Mr. Grand breached his duty of care to Mr. White. I find Mr. Grand failed to meet the standard of care required of him in the circumstances. In this regard, I accept the evidence of Mr. Koerth and Mr. Smith subject to the certain exceptions in dispute which I will go on to consider.

ISSUE: (a) Mr. Grand (ii) If so, what is the proper measure of damages?

[51] Mr. White’s counsel prepared a Deficiency Chart attached at Appendix A of the Plaintiff’s Brief of Fact and Law (closing submissions). This document lists the OBC deficiencies identified by Mr. Koerth in his main report dated October 21, 2014. Mr. Koerth also prepared other reports dated September 25, 2014, November 27, 2014 and December 13, 2018 contained in Exhibit A.

[52] Mr. Koerth was qualified as an expert in the area of forensic engineering including building sciences, civil engineering, building and construction failures under the OBC, structural failure analysis under the OBC, costing assessment regarding remediation and repairs. He also had expertise in evaluating the standard of care of building inspectors for municipalities in the Province of Ontario.

[53] I find Mr. Koerth’s experience and qualifications were deep and broad-ranging. His evidence at trial was clear, cogent and reliable.

[54] Mr. Smith also a professional engineer testified at trial on behalf of the Town. He too was qualified as an expert in the area of forensic engineering including building science, building failures and defects, civil engineering regarding building and construction trades and the application of the OBC, in particular to structure failure. Mr. Smith was also qualified as an expert in the area of the standard of care relating to building inspections in the Province of Ontario.

[55] Further, he was qualified as an expert regarding the cost of repair and remediation of damaged buildings in particular residential homes and the application of the OBC to those repairs and to any deficiencies in residential home construction under the OBC.

[56] Similar to Mr. Koerth, I find Mr. Smith’s experience and qualifications to be equally deep and broad ranging. Likewise, his evidence at trial was clear, cogent and reliable. Mr. Smith delivered reports dated August 11, 2016, July 27, 2017 and March 13, 2019.

[57] The Deficiency Chart (regarding which the Town had input) represents Mr. White’s perspective of the parties’ positions on deficiencies and the cost of repair.

[58] It is Mr. White’s position that those deficiencies must be rectified in order for the Property to be safe and in compliance with the OBC. Mr. Koerth provided a scope of repairs at trial referencing ss. 3.2 and 4.2 of his October 21, 2014 report. He testified that these sections were to be read in conjunction with each other. The Deficiency Chart prepared on behalf of Mr. White itemizes and references the relevant sections 3.2 and 4.2. The Deficiency Chart also referenced photographs in Mr. Koerth’s report, work done by Mr. White, estimate amount of repair per the FGM estimate, referenced to Mr. Smith’s report dated August 11, 2016 and the estimate amount by C2C to repair and lastly, where Town liability was not disputed by Mr. Smith or was disputed by Mr. Smith.

[59] In addition, on behalf of Mr. White, his counsel prepared a damages summary itemizing special damages, alternate living expense claim and general damages claim found at Tab B of the Plaintiff’s Brief of Fact and Law (closing submissions).

[60] Mr. White’s total claim against both Mr. Grand and the Town was set out in the amount of $156,415.49 including the alternative living expense claim plus the claim of $20,000 for general damages.

[61] Mr. Dahl and Mr. Haist both experienced contractors also testified as to the cost of repairs. They differed as to what needed to be repaired and the cost. They differed as well as to the method of repair to produce the best and least expensive repair.

Estimates to Repair

[62] Mr. White submitted his damages summary which was updated following trial. The estimates for repair were presented by Mr. Dahl of FGM in his testimony at trial. Mr. Dahl’s costing was based upon Mr. Koerth’s scope of repair. Mr. Dahl’s estimate of repair was in the amount of $193,788. His estimate also included tax, overhead and profit. Further, his estimate provided for a 20% contingency fee. The C2C estimate does not include a contingency fee. Mr. Haist’s estimate is a fixed estimate based on time and materials in the amount of $48,713.59 based on “covered items” identified by Mr. Smith.

[63] As a result of the evidence given at trial by Mr. White, Mr. Koerth, Mr. Dahl for the Plaintiff and by Mr. Hooking, Mr. Smith and Mr. Haist for the Town, certain line items were identified by Mr. White’s counsel contained in Mr. Dahl’s report that were no longer being claimed by Mr. White.

[64] FGM’s estimate prepared by Mr. Dahl can also be found at Exhibit 1 Tab 43. This estimate is reduced by the following corresponding line items in the FGM report and those items are no longer claimed as follows:

Estimates to Repair: First General Services Estimate (Ex. 1, T. 43) $193,788.00 Reduce by Lines (completed work): 1-11 (Drainage) $23,215.29 52-57 (LR ceiling and insulation) $11,075.82 59 (Lintel) $4,061.22 60 (Potlights) $5,152.80 72 (Deck support posts) $596.64 $44,101.77 20% contingency $8,820.35 ($52,928.12) $140,859.88 (also see damages summary, Plaintiff’s written closing submission at Tab B)

[65] I accept the evidence of Mr. Koerth and Mr. Smith that the insulation of the recreation room wall next to the garage did not require insulation. The failure to insulate was not an OBC deficiency. This was not a breach of a duty of care or negligent construction or breach of the OBC. I do not agree that Mr. Grand was required to insulate the uninsulated wall between the recreation room and the unheated garage based on the evidence of Mr. Smith and Mr. Koerth. This was identified as “conditioned” space. Therefore, I would reduce Mr. White’s claim for this item in the amount of $24,056.71. This amount can be found in the FGM report at lines 30, 34-42 and in the Deficiency Chart, Appendix A, page 7 under the heading Garage.

[66] I would also discount a further 20% contingency fee of $4811.34 for a total reduction of $28,878.05.

[67] With this reduction, the amount claimed for the special damages regarding the estimate to repair becomes the sum of $111,981.83 ($140,859.88-$28,878.05).

The Contingency Fee

[68] The Town submits that a contingency fee is not required. Mr. White’s position is that the contingency is needed in case additional deficiencies are uncovered while the repairs are being completed. The FGM estimate includes a 20% contingency fee while C2C Contracting’s estimate does not include one.

[69] Mr. Haist testified at trial that the reason he did not provide a contingency in his estimate was because he never does on any of his projects where the scope of repairs come from engineers. In this case, there are two engineers who inspected the property and provided recommendations for the scope of repair.

[70] Mr. Haist testified that he will not charge a client for a significant contingency fee when it is not needed. If an issue arose that was not in the scope of work, Mr. Haist confirmed that he would stop work and discuss next steps with the owner and possibly an engineer before continuing. He would then issue a change order.

[71] Mr. White’s position is that the contingency is needed in case additional deficiencies are uncovered. Both contractors’ estimates are for the repair to deficiencies that form the basis for the damages claim in this lawsuit. The renovations by Mr. Grand in 2012 have been closely inspected by the two professional engineers and the two experienced contractors who testified. At this point, eight years after the work was done, and five and a half years after Mr. Koerth did his detailed investigations, any deficiencies should have come to light.

[72] I find whether there are any deficiencies remaining is speculative and even if there are any, there is no evidence before this court that those deficiencies involve Building Code violations missed on reasonable inspection by the inspectors or whether they involve construction in the existing old part of the house predating the Building Code regime or whether we are dealing with deficiencies at all in any event.

[73] It is submitted by the Town that Mr. Haist’s estimate should be favoured due to the lower cost being a time and materials estimate. Notwithstanding, both Mr. Haist and Mr. Dahl used the same software package for costing accepted by the insurance industry. While I am not persuaded that it would be preferable to accept Mr. Haist’s costing over that of Mr. Dahl solely on the basis that it is a time and materials estimate, I find that on the issue of a contingency fee, the FGM estimate prepared by Mr. Dahl ought to be discounted by a further 20% to reflect the elimination of the contingency fee built into FGM’s estimate. I accept the Town’s submissions in this regard.

[74] I find the elimination of the contingency fee reduces the sum of $111,981.83 by $22,396.36 (20%) which leaves $89,585.47 estimated for the amount of repairs.

[75] I accept the evidence of Mr. Koerth and Mr. Dahl that the scope of repairs and cost of repairs estimate as against Mr. Grand is in the amount of $89,585.47. With the exception of discounted items and the contingency fee, I find this amount is fair and reasonable. The amount is well documented and supported by the credible and reliable evidence of Mr. Koerth an experienced engineer and Mr. Dahl an experienced contractor.

[76] I say this with the following caveat. The amount of damages for which Mr. Grand is liable is not the same amount for which the Town and Mr. Grand are jointly and severally liable as I will later explain.

[77] The analysis of damages for which Mr. Grand is liable continues.

Out-of-Pocket Expenses

[78] I return to Mr. White’s damages summary and consider the out-of-pocket expenses claimed for insulation for ceiling, insulation, lintel and drainage.

[79] The hours of labour spent by Mr. White and services and materials provided by others are well documented and supported by the evidence of Mr. White. The Town accepts these expenses as fair and reasonable with the exception of the claim for insulation in the amount of $4000. Mr. White testified that he paid Muskoka Custom Insulation the sum of $4000 cash. Other than his sworn testimony, he could provide no evidence regarding this payment. No invoice was presented and no witness from Muskoka Custom Insulation was called to give evidence by Mr. White. I find there is insufficient evidence to prove this claim and would further discount the claim for out-of-pocket expenses by the sum of $4000.

[80] I award Mr. White the balance of his proven claims for out-of-pocket expenses for the ceiling, lintel and drainage items in the amount of $7,055.61 which is added to the amount of repairs in the amount of $89,585.47 for a total of $96,641.08 for which Mr. Grand is liable to Mr. White.

Alternate Living Expense Claimed

[81] Mr. White claims alternate living expenses for a period of six weeks at $4500. The Town disputes this claim. It relies on the evidence of Mr. Haist that the repairs would take four to five weeks without Mr. White, his wife and two dogs having to leave their home. The repair work would not be done in every room at the same time and Mr. Haist’s crew could enclose areas while work went on. The use of plastic barriers would prevent dust and debris from entering the rest of the home. The Town submitted that there was no reason for Mr. White and his family to be afforded alternate living expenses when it was not reasonable or necessary in the circumstances.

[82] For the following reasons, I disagree. Mr. White testified that while he did his own repair work he remained living in the house. He found his experience to be “unlivable” and he would not do so again. Now, he has the added responsibility of looking after his two dogs. He did advance at trial a claim of $9000 based on his search of rates charged for Airbnb units on the internet. Now, he has reduced his claim by half.

[83] I find Mr. White’s claim for alternate living expenses to be fair and reasonable. I am not persuaded that anyone who does the repair work be it Mr. Haist or Mr. Dahl could do so without causing significant dislocation to Mr. White and his family. I do not agree that they could remain in the house during the repair work contemplated over the estimated period of time. It would neither be necessary or reasonable for Mr. White to do so. Mr. White, his wife and dogs need to be out of their house while the repairs take place. I find the use of plastic barriers is not a reasonable solution for an ongoing disruptive construction project. I conclude it reasonable that Mr. White and family move out for a period of renovation.

[84] I accept the time period should be four weeks which is the time shared by Mr. Dahl (four weeks) and Mr. Haist (four to five weeks) in their evidence.

[85] Accordingly, I award Mr. White damages for alternate living expenses in the amount of $3000 (four weeks times $750) against both Mr. Grand and the Town on a joint and several liability basis.

[86] To recap, I find the total special damages for which Mr. White is entitled against Mr. Grand for negligent construction is the sum of $96,641.08. In addition, alternate living expenses are awarded as above.

Liability of Mr. Grand for Breach of Contract

[87] A construction contract includes an implied term that the contract would be performed in a good and workmanlike manner where the property owner relied on the knowledge and expertise in construction of the contractor. Gigone v. Siao, 2016 ONSC 102263, paras. 62-63

[88] When Mr. White entered into the APS that was conditional upon the completion of construction work, his expectation was that Mr. Grand would not only comply with the OBC but would complete the construction in a good and workmanlike manner. Indeed, the price abatement given to address some workmanship issues regarding the driveway supports the position that completion of the construction in a good and workmanlike manner was an implied contractual term.

[89] The evidence of Mr. White, Mr. Koerth and Mr. Dahl identified the deficiencies and the negligent construction on the part of Mr Grand. That negligent construction ranged from relatively minor items to significant structural items for example, such as removing a supporting beam in the recreation room. There were other problems identified only after closer inspection occurred again for example the lintel problem – insufficient support due to over-spanning and deficient framing.

[90] I am satisfied that Mr. Grand did not perform work in a good and workmanlike manner. Mr. White relied on Mr. Grand’s knowledge and expertise regarding home construction only to discover later that Mr. Grand had concealed negligent work that affected the structural integrity not only of the existing structure (recreation room basement) but also of the addition (the lintel).

[91] For these reasons and for previous reasons, I find Mr. Grand liable to Mr. White for contract and in tort for failing to construct the Property in accordance with the requirements of the Ontario Building Code. He breached the OBC, breached his duty of care and is liable for the negligent construction regarding the Property. In this regard, I find the evidence against Mr. Grand to be overwhelming.

[92] In summary, as I have previously found, the special damages including the estimate to repair and out-of-pocket expenses are assessed in the amount of $96,641.08 for which Mr. Grand is liable to Mr. White. Mr. Grand is also jointly and severally liable with the Town to pay alternate living expenses to Mr. White in amount of $3000.

ISSUE: (b) Town of Bracebridge (i) Is the Town liable to Mr. White for the negligent inspections of Mr. Grand’s construction work?

[93] The answer to this question is yes but only for some of Mr. Grand’s construction work. Not all. There are conceded deficiencies and there are disputed deficiencies.

The Conceded Deficiencies

[94] The Town has conceded that the following areas of construction by Mr. Grand contain OBC deficiencies which should have been caught on inspection:

(a) The Deck (i) Missing posts (ii) Inadequate nailing of built up wood beams (iii) Ledger board connection to south wall framing (iv) Offset sunroom post (v) Poor upper and lower post connections (vi) Single ply support for lower deck landing (viii) East beam under sunroom connection to ledger board

(b) The Sunroom (i) Roof beam separation

(c) The Living/Dining Room (i) Main roof lintel

(d) Stairs (i) Support for upper level framing at stairwell (ii) Wall framing at stair to upper level

(e) Garage (i) Main support beam (ii) Storage area under stairs (iii) Ceiling insulation and vapour barrier (iv) Seepage at west side (v) Poorly insulated bulkhead

(f) The Furnace Room (i) Vapour barrier and insulation

(g) The Exterior (i) Addition east wall drainage

[95] Mr. White has admitted that he is no longer pursuing a claim to repair the missing deck posts (a)(i) and the offset sunroom post (a)(iv) in the deck area. The cost to repair the missing deck posts was included in the repair estimate of Mr. White’s contractor FGM, and the Town’s contractor C2C. Mr. White’s engineer Ron Koerth performed engineering analysis which determined that both installations were acceptable under the OBC.

(a) Conceded Deficiencies Repaired by Mr. White

[96] Mr. White completed some of the repairs associated with conceded deficiencies. His labour hours and out-of-pocket expenses associated with his repairs are outline at Appendix B of the Mr. White’s written closing submissions.

[97] The Town accepts as reasonable the cost for Mr. White’s repair of the living/dining room main roof lintel (c)(i) for a total of $743.78 which included ten hours of personal labour time and hiring Affinity Design Build of Muskoka to fix the lintel.

[98] The Town also accepts Mr. White’s cost of repairs of the east wall drainage at the exterior of the premises (g)(i) for a total of $2,448.81 which is broken down at Appendix B of Mr. White’s written closing submissions.

[99] The conceded deficiencies repaired by Mr White including the permit fee totals the sum of $3392.59.

(b) Costs to Repair the Remaining Deficiencies

[100] The Town agrees that Mr. Smith adopted many of Mr. Koerth’s recommendations regarding the scope of repairs for the conceded deficiencies save for the repair to the wall framing at stair to upper level (d)(ii). At issue is the cost of some of those repairs.

[101] Ron Dahl of FGM and Warren Haist of C2C Contracting prepared estimates for the repairs to the deficiencies. Mr. Dahl testified that his estimate was based purely on Mr. Koerth’s scope of repair. Mr. Dahl agreed that there were alternative repair methods (in his words, “more than one way to skin a cat”). Mr. Haist testified that he used both Mr. Smith’s recommendations as well as his own experience in his approach.

[102] Mr. Dahl and Mr. Haist are equally qualified with significant experience in contracting and preparing estimates. Both use the same software to prepare the estimates. Both perform contracting work involving renovations, restorations and insurance related claims. Mr. Haist’s qualifications were not challenged on cross examination when he was tendered as a witness. The Town submits no weight should be given to Mr. White’s submission that the court should accept Mr. Dahl over Mr. Haist based on the approximate total number of projects each contractor performs in a year and the size of those projects. These factors are not a relevant in determining experience and reliability when it comes to the estimates they provided on the White property, a single family residence.

[103] Mr. Haist confirmed at trial that if the plaintiff retained C2C Contracting for the repairs, it would perform the repairs for the price outlined in the estimates.

[104] The large difference in cost between the FBM and C2C estimates does not indicate C2C Contracting missed repairs. Mr. Haist was not asked this question in cross-examination. He testified he chose the best and most cost effective and efficient method based on his experience. Essentially, the difference in costing is because the repair method preferred by Mr. Haist and Mr. Smith does not require the removal of the siding, which saves $10,837.43.

[105] The Town submits that the court should favour Mr. Haist’s estimate and scope of repair for the remaining conceded deficiencies. The Town asserts that the difference in method of repair between Mr. Dahl and Mr. Haist accounts for the difference in cost to repair.

[106] Further, the Town submits that the Smith and Haist approach would produce the best and most effective method which would also result in cost savings.

[107] I am not persuaded that I should prefer the Haist estimate over the estimate of FGM. While Mr. Haist and Mr. Dahl use the same software program and are both experienced in their field, I am more satisfied with the evidence of Mr. Dahl and Mr. Koerth in the thoroughness and effectiveness of their approach/method over that proposed by Mr. Smith and Mr. Haist.

[108] I should also add that Mr. White had previously worked with Mr. Dahl when FGM was called in to deal with the ice damming problem. Mr. White was satisfied with FGM’s response and had confidence in his dealings with FGM. That having been said, their previous dealings are not determinative of this question.

[109] The cost of repair taken by FGM is based on the FGM investigations and reports prepared by Mr. Koerth. I find Mr. Koerth’s reports to be thorough and detailed. For the most part, they did not overreach or overstate. Similarly, Mr. Koerth’s evidence at trial was also thorough and complete. Taken together, the evidence presented by Mr. Koerth and Mr. Dahl was credible and compelling. The evidence of Mr. Smith and Mr. Haist was also credible. However, I find the evidence of Mr. Koerth and Mr. Dahl favours this court’s acceptance of the scope and cost of repairs presented on behalf of Mr. White. Having so found, I must go on to determine the appropriate and reasonable cost of repairs for the conceded deficiencies.

[110] As I have stated the cost of repairs claimed by Mr. White and admitted by the Town including a cost of new permits for the lintel and east wall drainage repairs is the sum of $3392.59.

[111] As this work has been done, no contingency fee applies.

The Deck

[112] FGM’s estimate for deck reports apart from the missing posts is the sum of $2067.90 (see Deficiency Chart). The Town submits that the costs associated to repair the remaining deck repairs should be less than the FGM estimate. I do not agree. The estimate is fair and reasonable. The required repair is necessary. I fix the cost of deck repairs in the amount of $2067.90. This figure coincides with the same number which the Town submits would be appropriate for the repair of the deck.

The Sunroom

[113] I accept as fair, reasonable and necessary the estimate of Mr. Dahl to repair the roof beam separation caused by inadequate nailing in the amount of $190.80.

The Stairs

[114] The Town submits that there is a cost to repair issue regarding the conceded deficiencies regarding the stairs (i) support for upper level framing at stairwell (ii) wall framing at stairs to the upper level.

[115] Mr. Smith and Mr. Haist recommended different construction method to repair the wall framing at the stair to the upper level (d)(ii) than that recommended by Mr. Koerth. This involves repairing the wall framing and the loose sheathing from the inside, which does not require the removal of exterior siding along the entire east wall of the house. Given the lower cost and less invasive method to repair the deficiency, and Mr. White’s need to mitigate, The Town submits that Mr. Smith and Mr. Haist’s scope of repair should be favoured.

[116] At trial, Mr. Haist confirmed that his estimate was based on recommendations from Mr. Smith, but also based on his experience. Mr. Haist testified that he was not in the business of spending people’s money when it was not necessary. Mr. Koerth’s method or repairing the wall framing involved the removal and replacement of all the exterior siding at a cost of $10,837.43.

[117] Mr. Haist’s comment at trial about opening a “can of worms” relates to the possibility of not being able to remove and reinstall the existing siding and inability to make the home look uniform as new siding will always be different to older siding. It also relates to the only known loose sheathing being in the area of the stair framing and not the entire east side of the home of which the exterior wall construction was part of the old part of the house.

[118] Mr. Haist confirmed at trial Mr. Smith’s method of repairing the wall framing by securing the rim joist properly and then using adhesive to secure the loose sheathing from the inside. This is simply a different technique to repair the deficiency from that recommended by Mr. Koerth and one that could avoid the high cost of removing and replacing the exterior siding. For these reasons, Mr. Smith and Mr. Haist’s scope of repair should be favoured.

[119] The Town submits the court should favour C2C’s estimate and scope of repair for the stair repairs in the amount of $5,346.08.

[120] The FGM estimate for these repairs is in the amount of $28,441.83 (see Deficiency Chart) at Trial, Mr. Smith agreed that the support for the upper level framing at the stairwell was part of the permit scope. I accept as fair and reasonable the FGM cost of repairs for this item in the amount of $5,698.82 as referred to in the Deficiency Chart.

[121] I prefer the method of construction recommended by Mr. Koerth for the repairs of the wall framing at the stairs to the upper level. I have considered the method and removing the siding in the area to secure the sheathing and repair the framing from the outside. I find that this method although more invasive and more expensive than Mr. Haist’s approach is a method what will provide more certainty and security than repair work from the inside using adhesive to secure loose sheathing and repairing the wall framing by securing the rim joist properly.

[122] I realize that this is a major repair item and that there is a genuine issue regarding repair cost. At the same time, I recognize that these two items were conceded deficiencies missed by the Town building inspectors on the framing inspections. The problem ought to have been identified through the inspections but was not. The Town bears the cost of repair. I find the least expensive cost proposed does not necessarily reflect the best method of repair. I find the scope of repair recommended by Mr. Koerth as set out in his report to be fair reasonable and necessary. I fix the cost of these repairs to reframe the wall in accordance with the Koerth report and to remove siding to permit reframing in the amounts of $11,905.58 and $10,837.43 respectively.

[123] I find the total amount to repair the stairs is the sum claimed by Mr. White in the amount of $28,441.83.

The Garage

[124] The Town submits that the amount estimated to repair the garage is the sum of $28,731.86. It relies on Mr. Haist’s estimate of approximately the same number of $20,223.36.

[125] Mr. White claims the cost of repairs based on Mr. Koerth’s evidence and Mr. Dahl’s estimate in the amount of $34,558.93.

[126] Mr. Haist clarified at trial that the estimate to make repairs to the storage room, which is the small space under the stairs located inside the garage, is labelled “stairs” in his estimate at Tab 9 and includes line items 3 to 9 which totals $3,786.98. This includes all repairs to the storage room, including all vapour barrier repairs.

[127] At trial, Mr. Haist admitted to not including the estimate of the repairs to the furnace room (e)(i) and the costs to repair the insulation and vapour barrier deficiencies in the furnace room as outlined in the FGM estimate of $3,258.71 was reasonable.

[128] Mr. Haist also admitted to not including the moisture seepage to the north west corner of the garage in his estimate as this was not an issue observed by him while conducting his onsite inspection of the property with Mr. Smith. Mr. Haist accepted FGM’s gost to repair this deficiency of $508.50 was reasonable.

[129] The repair deficiencies are summarized in the Town’s Written Closing Submissions at para. 5 (e) and in Mr. White’s Deficiency Chart. They consist of the following items:

(i) Main support beam (ii) Storage area under stairs (iii) Ceiling insulation and vapour barrier (iv) Seepage at west side (v) Poorly insulated bulkhead

[130] I find that the deficiency items are identified by Mr. Koerth and are conceded by the Town. Further, I accept the costing of these repairs is fair and reasonable set out in Mr. Dahl’s evidence consistent with the scope of repair and deficiencies identified by Mr. Koerth.

[131] Mr. Haist admitted that he did not include the moisture seepage to the north west corner of the garage in his estimate as he had not observed this to be an issue upon his inspection. However, Mr. Haist accepted that Mr. Dahl’s cost of repair to this deficiency in the amount of $508.50 was reasonable.

[132] I accept the evidence of Mr. Koerth and Mr. Dahl regarding garage repairs. I find the total amount to repair the garage deficiencies is the sum of $34,558.93. I find this work to be fair, reasonable and necessary. I find the amount for these repairs also to be fair and reasonable.

The Furnace Room

[133] The conceded deficiency relates to vapour barrier and insulation in the furnace room. Mr. White’s claim is based on Mr. Koerth’s and Mr. Dahl’s evidence. The amount of repair is estimated in the amount of $3258.71. Mr. Haist had not included this amount in his estimate. However, at trial he testified that the FGM estimate of $3258.71 was reasonable. I accept Mr. Dahl’s estimate the amount of which Mr. Haist stated was reasonable. I fix the amount to repair the furnace room deficiency wat $3258.71.

[134] I have previously dealt with the amount agreed upon by the Town for the lintel and addition east wall drainage out-of-pocket expense claims in favour of Mr. White. No contingency fee applies here. That amount is $3392.59.

[135] I find the amount of the conceded deficiencies for which the Town and Mr. Grand are jointly and severally liable to Mr. White in the following amounts:

• The Deck - $2067.90
• The Sunroom - $190.68
• Stairs - $28,441.93
• Garage – $34,558.93
• The Furnace Room - $3258.71 Subtotal of $68,518.05.

[136] I further reduce this amount by the 20% contingency fee for reasons previously given disallowing such a fee. The 20% discount on $68,518.05 is the sum of $13,703.61.

[137] I find the conceded deficiencies over which there was a dispute as to quantum of repair to be the sum of $54,814.44. The out-of-pocket expense items for the lintel and east wall drainage repairs performed by Mr. White including permit is the sum of $3392.59. There was no deduction for a contingency factor in respect of these two items. With these two items added in, the amount for which the Town and Mr. Grand are jointly and severally liable to Mr. White for repairs at this point is the sum of $58,207.03. There will be additional items further identified in my reasons.

ISSUE: (b) Town of Bracebridge (ii) If so, are there any damages arising from the construction work for which the Town is not jointly and severally liable with Mr. Grand?

[138] The Town argues that their obligations apply exclusively to construction activity within the scope of the building permit issued. However, Mr. Smith testified that if certain construction work was not identified on the building permit and the building inspector was unaware that such construction had occurred, then how could the building inspector identify deficiencies.

[139] The Town disputes the following deficiencies because they were either outside the scope of the approved building permit for the addition and/or they would not have reasonably been seen by the Town’s inspectors during the inspections and/or they do not represent OBC deficiency:

(a) The Sunroom (i) Height of unprotected openings

(b) The Living/Dining Room (i) Vapour barrier and improper potlights (ii) Inadequate ceiling insulation

(c) Recreation Room (i) Over-spanning of the original floor joists (ii) Uninsulated wall between the recreation room and garage

Sunroom

[140] Mr. White admits that he removed the wooden 42 inch guards that Mr. Grand had installed in the sunroom. The height of the unprotected openings in the sunroom were not OBC deficient at the time that Town performed its inspection. This was not conceded by Mr. White until evidence was heard at trial, including Mr. Koerth’s admission that the window guards as installed by Mr. Grand met the OBC. Therefore, this claim against the Town is not allowed.

[141] However, there remain disputed deficiencies for which the Town maintains that it is not liable. These disputed deficiencies relate to the living/dining room and the recreation room.

The Town’s Duty of Care and Standard of Care

[142] The Town agrees with Mr. White’s characterization of the Town’s duty of care in reference to Ingles v. Tutkaluk Construction Ltd., [2000] 1 SCR 1068, at paras. 19 and 24 of Mr. White’s written closing submissions. The Town admits that it owed a duty of care to Mr. White to perform inspections without negligence.

[143] The Town also agrees with Mr. White’s characterization of the Town’s standard of care and the reference to the Ingles case also found at paras. 25 and 26 also of Mr. White’s written closing submissions.

[144] Once it is determined that a duty of care is owed, a traditional negligence analysis is applied. To avoid liability, the building inspector must exercise the standard of care in its inspection that would be expected of an ordinary, reasonable and prudent inspector in the particular circumstances. Ingles v. Tutkaluk Construction Ltd., [2000] 1 SCR 1068, at para. 40

[145] The Town agrees that the measure of what constitutes a “reasonable” inspection will vary depending on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of the harm, and the burden or cost which would be incurred to prevent the injury. Ingles, supra at para. 40

[146] Additionally, municipalities will not be held to a standard where they are required to act as insurers or guarantor for the renovation work. The municipality is not required to discover every latent defect or every deviation for the Code in renovations at the owner-builder’s home where inspections are carried out according to an inspection scheme based on good faith policy decisions. That would be to hold the municipality to an impossible standard. It is required to conduct a reasonable inspection in light of all the circumstances of the case. Ingles, supra at para. 40, see also, Manolakos v. Gohmann, [1989] 2 SCR 1259, at para. 14, and Shulist v. Waterloo (City), at paras. 28-30

[147] The court goes even further to say that the municipality’s obligation to ensure the premises is built in a manner that ensures the safety of future occupants does not cast upon the municipality any obligation to ensure that the building is completed exactly in accordance with the specifications set out for the development by the owner. Gorscak v. 1138319 Ontario Inc., at paras. 31-32

[148] The Town’s duty is limited to detecting an ordering remedied those defects that are apparent on visual inspection during the staged inspections during construction. Inspectors do not have to continuously monitor the construction.

Application to the Disputed Deficiencies

[149] Tom Hookings, Chief Building Inspector for the Town, testified that the Town’s Building Departement in 2011/2012 was made up of three Building Inspectors including Mr. Hookings, and one clerk. The Department was, as it is now, very busy, issuing approximately 500-550 permits per year. Various inspections were required for each permit. Mr. Hookins estimated that a Building Inspector would perform five to eight inspections at different properties in a single day.

[150] Mr. Hookings confirmed that Mr. Grand was not known to him or anyone in the Department at the time of the application. He did not carry with him a negative reputation to warrant any “red flags”. Mr. Grand’s application for the permit was reviewed by the Town’s building inspector, Andy Jones, who is now the Chief Building Inspector for the Town of Gravenhurst. Mr. Hookings testified that certain information is required in order to consider an application complete. The plans review stage is to ensure that the project was in compliance with the Code. Mr. Jones had no memory of his interactions with Mr. Grand. Mr. Hookings testified that if there are blank areas on the application, that information was not required following the plans review stage in order to consider the application complete. It is clear from the Town’s documents, entered into evidence through Mr. Hookings’ testimony that, when required, Mr. Jones requested further information from Mr. Grand during the plans review stage. Mr. Grand responded and Mr. Jones was satisfied with the response and issued the permit.

[151] Mr. Hookings testified that the nature of a Building Inspector’s inspection is visual. The inspector will only do the inspection that he or she is called in to do following the applicable staged inspections set out on the building permit. The inspection could last anywhere between 15 minutes to 2 hours depending on the inspection and complexity of the property.

[152] Mr. Koerth agreed that a building inspector would not be expected to see every deficiency or inspect every inch of the permitted work.

[153] Mr. Hookings testified that the timing between the inspections performed by the Town at the Grand property were normal. Mr. Grand called the Town when he was ready for each inspection.

[154] A plumbing inspection was not done. Mr. Hookings testified that a building inspector inspects the work contained in the building permit. Had the building inspector performed the plumbing inspection, he would have attended the property to inspect the plumbing in the addition under the building permit, not the old existing part of the home. The Town submits it is beyond speculation based on the evidence to suggest that the inspector would have seen or been alerted to plumbing being replaced in the old existing part of the house.

[155] Mr. White’s transcript of his examination for discovery dated July 16, 2015 was put to him on his cross-examination. Mr. White was asked about his evidence about contacting the Town regarding the plumbing inspection. Mr. White answered, “No, no. I didn’t call them to talk about a plumbing inspection. I called them to ask if one had been done.” The Town submits that the court should accept that sworn testimony of Mr. White on July 16, 2015 as to all that transpired on that phone call. Mr. White did not inform the Town of plumbing leaks at the Property as he alleges. The Town denies that plumbing leaks or plumbing work being done in the old existing part of the house was brought to the Town’s attention.

[156] The check marks on the Town inspection records indicate when the building inspector noted a deficiency on inspection, that Mr. Grand fixed those issues and that the Town was satisfied at the next inspection. Mr. Hookings testified that the issue that had been fixed may have been covered up by the next inspection, and it would have been reasonable for an inspector to rely on Mr Grand’s verbal confirmation that it was fixed or changed.

[157] Mr. Hookings also confirmed that for inspections, such as the insulation inspection, the insulation and vapour barrier may not be 100% complete. The inspector would not pull down the vapour barrier to inspect every piece of insulation. Again, the inspector might rely on asking the builder of the R-value of the insulation when the inspection is carried out.

[158] Mr. White submits that Mr. Grand’s construction deviated from the plans delivered to the Town in support of his building application. This should have put the Town on notice that Mr. Grand’s work was deficient and further effort was required by the Town to satisfy themselves that the construction was in fact being carried out in accordance with the OBC. I disagree.

[159] I accept the Town’s submission that there was nothing about Mr. Grand or his application or the work he did during the Town’s staged inspection that raised “red flags” and warranted an increased standard of care.

[160] I accept Mr. Hooking’s evidence and find that Mr. Grand made several changes to the plans in support of the application during the renovations. However, Mr. Grand made these changes without informing the Town.

[161] Mr. White submits the Town failed to require Mr. Grand to remedy deficiencies.

[162] With respect to Mr. White’s written closing submissions at paras. 56 to 63, Mr. Hookings testified that the Town would not deem a home “unsafe” for the purpose of habitation without an engineering report. Mr. Koerth wrote a letter regarding the roof lintel as a structural concern dated September 24, 2014. Mr. Hookings testified that this letter never said the property was unsafe. Mr. Koerth raised the issue of the roof lintel and that it should be repaired prior to the upcoming winter season. It was fixed by Mr. White immediately and Mr. Koerth provided his inspection letter of November 27, 2014 certifying the lintel repair satisfied his requirements. Mr. Koerth did not issue any further safety letters regarding any of the issues raised in his subsequent inspection as set out in his report of October 21, 2014. Mr. Koerth never deemed the property unsafe.

[163] Mr. White’s position is that the Town should have issued an order to comply against Mr. Grand after becoming aware of the deficiencies. Mr. Hooking’s evidence at trial was clear that the Town did not issue an order or lay a charge against Mr. Grand because he no longer had ownership of the property. At the time the deficiencies were discovered, Mr. White owned the property and any orders or charge would have been made against him.

[164] The Town submits and I agree that it is beyond speculation to assume that any order made against Mr. White as owner and sent to Mr. Grand would have caused Mr. Grand to take immediate steps to conduct or contribute to repairs. This action was commenced in November 2014. Mr. Grand defended denying any responsibility. He participated in litigation through discoveries and then, as Mr. White aptly states, abandoned Ontario and this lawsuit, as evident in his decision not to attend the trial.

Disputed Deficiencies in the Living/Dining Room

[165] The disputed deficiencies in the living/dining room are twofold:

(i) Vapour barrier and improper potlights (ii) Inadequate ceiling insulation

[166] In his damages summary, Mr. White has reduced his claims for the living/dining room ceiling and insulation and for the potlights. These claims have been disallowed as against the Town in any event. The Town maintains that it is not liable for the alleged inadequate ceiling insulation in the living/dining room. This alleged deficiency was not observed by Mr. White’s engineer Mr. Koerth and not referenced in his report.

[167] As set out previously, Mr. Hookings testified that insulation and vapour barrier may not be 100% complete when the Town performs an insulation inspection. The inspector will not pull down or inspect every piece of insulation. It is reasonable to rely on verbal confirmation from the builder of the R-value of the insultation when covered with vapour barrier.

[168] The Town is not liable for the poorly sealed potlights in the cathedral ceiling. Mr. White conceded during the course of this lawsuit that the potlights installed by Mr. Grand were the right type, so Mr. White did not need to replace them. The issue was the lack of seal between the flange on the light and the vapour barrier. This was caused by Mr. Grand’s use of strapping.

[169] Mr. Smith confirmed that the Code permitted installation of drywall directly on 24 inch centre ceiling joists. Mr. Koerth confirmed that while strapping was often used, it was not required by the Code. Mr. Koerth agreed that if the strapping was not present on inspection, the building inspector could have passed the insulation inspection on the assumption that the strapping would not be used given it is acceptable under the Code. Mr. White led no evidence that there was wood strapping installed when the inspector did the insulation/vapour barrier inspection.

[170] I accept the submissions made by the Town in respect of this item. I find in favour of the Town regarding this disputed deficiency which has been abandoned by Mr. White. This item is disallowed as against the Town in any event.

Disputed Deficiencies in the Recreation Room

[171] This was a major disputed item. The disputed deficiencies in the recreation room are twofold:

(i) Over-spanning of the original floor joists (ii) Uninsulated wall between the recreation room and the garage

(i) Over-spanning

[172] The recreation room is located in the basement of the existing structure not the addition. Regarding the over-spanning of the original floor joists, Mr. Smith agreed with Mr. Koerth that the removal of the beam in the recreation room left the original floor joists in an over-spanned condition which could lead to a total collapse of the floor structure.

[173] However, Mr. Smith disagreed that the Town should have identified this problem as it was not part of the building permit for the addition and may not have been seen by a building inspector.

[174] Mr. White submits that it is probable that Mr. Grand was effecting the construction work in the original house and the addition at the same time, such that Mr. Smith’s assumption that the work was not visible to a building inspector is incorrect. While the recreation room did not have any windows, the stair landing did have a window and there was no door or any other obstacles that would prevent light shining in through that window illuminating the recreation room.

[175] Further, Mr. White submits that even if the removal of the beam was not visible to a building inspector, the inspector should have made inquiries of Mr. Grand with regard to the scope of the construction project given the numerous red flags that were visible to the inspector.

[176] The Town submits it is not liable for the disputed deficiencies in the recreation room because these renovations were done outside the scope of the permit and were not visible or known to the Town inspectors.

[177] The Town submits that there is no evidence suggest that the work in the recreation room was being done concurrently with the permitted work or visible during the inspections.

[178] Mr. Koerth agreed that the inspection process happened over the course of six to seven months during which there were gaps as long as three months in between inspections. During these gaps in time, work could have been done and covered up. The deficiency here involved the removal of a main support beam which work was covered up by the dry walling of the recreation room ceiling. Mr. Koerth agreed that if the builder changes something and the area is covered up, there would be no way for the building inspector to know this except if the builder tells the inspector or it is visibly obvious. There is no evidence of Mr. Grand advising the Town he removed the beam just as he did not advise the Town of the other changes he made. There is no issue that the dry walling of the ceiling covered it up.

[179] Mr. Koerth confirmed that there was more than enough time between inspections to finish the recreation room and it is possible that this work in the recreation room was completed after the completion of the drawings for the permit and before any inspections had taken place.

[180] Mr. Hookings testified that there would have been no reason for the inspector to enter the recreation room at this property as this work was not included in the permit. The inspector attended to do visual inspection at different stages of the merited work. The inspector would be focussed on that inspection.

[181] However, the plaintiff suggests that as soon as the building inspector saw any work being done in the recreation room, it should have caused the inspector to ask questions or trigger a stop order.

[182] Mr. Hookings confirmed that in 2011 and 2012 the Town would have required a building permit for a basement renovation only if it involved structural changes, the addition of a bedroom and/or installation of plumbing. It the basement renovation involved building a recreation room by finishing the floors and finishing the walls and ceiling, a permit was not required.

[183] Mr. Hookings testified that it is not unusual for people to finish a basement while other permitted renovations are going on. Walking by an ongoing basement renovation or seeing one finished in between inspections would not necessarily cause a concern. If the inspector had been told of structural changes or new plumbing by Mr. Grand or happened to see either while performing an inspection, he could have asked Mr. Grand to stop work immediately and obtain an engineering design to ensure that this work was Code compliant. I find the fact that Mr. Grand was not told to do this supports the Town’s position that the inspector did not see structural changes involving the removal of the support beam, nor did Mr. Grand make the inspector aware of it.

[184] In his evidence in chief, Mr. White testified that he purchased the Property not as a “fixer upper” but because the house construction was nearing completion. Mr. White did not read the building permit posted on the house which was for the construction of an addition. Mr. White testified he was unfamiliar with the OBC when he purchased the Property. Yet, he testified that he “assumed” that the Town would inspect “everything” and “everything” would be up to Code.

[185] In cross-examination, Mr. White testified he saw the posted building permit outside the house but did not look at it. Mr. Grand had told Mr. White that the house was purchased the previous summer and Mr. Grand had been renovating it since then. Again, Mr. White testified he “assumed” the renovations were for both the old and new parts of the house. He understood that the existing structure was already there and Mr. Grand had changed it.

[186] Mr. White testified about problems with the shoring posts in the garage. This problem was not corrected by Mr. Grand. Again, Mr. White testified that he “assumed” this deficiency was caught because the building permit was for the whole house.

[187] I find that Mr. White was operating under a mistaken assumption that the building permit covered all of Mr. Grand’s construction – old and new. If fact, the building permit only covered construction work regarding the new addition. Mr. White’s evidence on this point is not credible and not supported by the evidence. I reject same.

[188] Mr. White suggests the Town’s inspector would have been able to see the structural changes in the recreation room from the hallway in front of the recreation room and laundry room. The laundry room was an enclosed room next to the recreation room at the time of inspections. The recreation room is an open room with no doors. Mr. White testified that if the lights were off, this room was dark.

[189] Mr. White testified on cross-examination that the laundry room now has a door and before Mr. White purchased the Property, the laundry room also had a door.

[190] I find there is no evidence that the laundry door was open at any time of any inspection by the Town. The evidence is that the recreation room was a windowless room.

[191] Mr. White points to a window at the far side of the landing and possible light casting from the window into the recreation room as proof that the inspector should have seen structural changes to the recreation room as proof that the inspector should have seen structural changes to the recreation room. There is no evidence that this landing window cast any or sufficient light when the inspectors were present. However, even if there was sufficient light, it does not mean that the structural or plumbing change was reasonably visible and required further inquiry.

[192] While it is apparent that there was work being carried out in the basement, there is no evidence as to who did the work or when. There is no evidence that any inspector saw any work being carried out in the basement or was ever told about it.

[193] I find that when inspections were taking place, inspectors were focused on the permitted work. There is no evidence that the inspectors should have seen or had any reason to be in the recreation room. Mr. Grand’s building permit was for the addition and did not include construction in the recreation room.

[194] I do agree that a structural or material change does require a building permit, for example, the removal of a beam in the recreation room by Mr. Grand. However, there is no evidence that the inspector saw this structural change or should have been put on notice of the removal of the beam and construction of the recreation room. There is no evidence of any inspector from the Town being at the Property when the beam was removed by Mr. Grand. I find Mr. Grand removed the beam and did not tell the Town.

[195] I find the Town is not liable for the disputed deficiency in the recreation room because these renovations were done outside the scope of Mr. Grand’s permit for the addition. Further, I find that the recreation room disputed deficiency was neither visible nor known to the Town inspectors. I reject Mr. White’s submission that the recreation room deficiency should have come to the knowledge of the Town’s inspectors on reasonable inspection. This is unsupported by the evidence and speculative at best.

(ii) Uninsulated Wall Between the Recreation Room and the Garage

[196] With respect to the uninsulated wall, I refer to my preceding reasons. This was not a Code deficiency. I accept the evidence of Mr. Smith and Mr. Koerth that no insulation was required because the basement had always been considered as heated “conditioned” space.

[197] Mr. Koerth agreed that this wall had been an exterior wall of the old home and the garage is an unheated space. He agreed that the basement of the old property before undergoing renovations, although unfinished, was a part of the building envelope and conditioned space, meaning it was heated and cooled. Mr Koerth agreed with Mr. Smith that this fact remained unchanged with the renovations to the basement and that the wall remained as an exterior building envelope.

[198] Mr. Koerth’s evidence was that the wall needed to be insulated because the basement was finished. Mr. Smith testified that finishing a basement did not trigger the need to insulate. Mr. Smith admitted that it was a good idea to insulate the wall, but it was not required by the Code.

[199] Mr. Hookings testified that the Town would require Mr. White to complete repairs to the Code deficiencies. The Town would not require repairs to something that is not in violation of the OBC.

[200] For these reasons, the disputed deficiency regarding the uninsulated wall between the recreation room and the garage is also disallowed. I accept the evidence on behalf of the Town and Mr. Koerth’s evidence that this item was not an, OBC deficiency.

[201] In summary, I find the Town is not liable for these disputed deficiencies because they are outside the scope of the permitted work, not visible to the Town during the staged inspections of the permitted work, and/or were not OBC violations.

[202] In answer to the question raised on this issue, I conclude that there are no damages arising from the construction work for which the Town is not jointly and severally liable with Mr. Grand to Mr. White.

[203] Regarding damages and disputed items, I have already found that Mr. White’s out-of-pocket expense claim of $4000 cash paid to Muskoka Custom Insulation has been disallowed as the claim had not been proven.

[204] There remain two further claims for discussion:

(i) The out-of-pocket expense claim for ceiling repairs (see damage summary) totalling the amount of $3663.02, and (ii) further painting of a portion of the walls associated with the lintel repairs.

[205] The Town submits that it should be allowed to deduct a portion of $12,803.03 that Mr. White received from his home insurer following the ice damming incident from any damages the Town must pay as this amount was paid to Mr. White for the same damages claimed in this action and that Mr. White may not recover the same damages twice. However, Mr. White asserts that any deduction is prevented by the “private insurance exception”. The Town denies that the “private insurance exception” does not apply in this case. The Town argues that it should be entitled to deduct the sum of $3663.02 (ceiling out-of-pocket expense claim) and the sum of $1356 ($1200 plus HST) for some unfinished painting associated with the lintel repair.

[206] Firstly, I find the further painting expense is identified at page four of the Deficiency Chart. This item is indeed associated with the lintel repair. Both Mr. Dahl and Mr. Haist identified some unfinished painting was required. This item falls under the category of an undisputed item. What was in dispute was the cost of the unfinished painting. The evidence at trial was that only some painting – not the entire room, needed painting because of the lintel repair. In the end, the costing evidence arrived at the same place – namely the sum of $1356. I find this amount is fair, reasonable and necessary to take care of some unfinished painting in the living/dining room relating to the undisputed lintel repair. This item is completely outside the applicability of the “private insurance exception”.

[207] I find that Mr. Grand and the Town are jointly and severally liable to pay the sum of $1356 to Mr. White. There is no contingency reduction that applies to this amount.

[208] In its submissions, the Town agrees with the quantum of $1356.

[209] Turning now to Mr. White’s out-of-pocket expense claim for the ceiling in the amount of $3663.02.

[210] For the following reasons, I find that the Town is not entitled to a deduction for this amount.

[211] As the Supreme Court of Canada explained in Cunningham v. Wheeler, [1994] 1 SCR 359, “payments received for loss… pursuant to a private policy of insurance should not be deducted…”

[212] The Supreme Court quotes from Bradburn v. Great Western Rail Co.:

I think there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is, “laying by for a rainy day”. He pays the premiums upon a contract which, if he meets with an accident, entitles him to receive a sum of money. It is not because he meets with the accident, but because he made a contract…

Later the basis for the exemption was shifted from the causal reason in Bradburn to one based on the fact that the plaintiff had paid for the insurance benefit and that benefit thus paid for should not enure to the benefit of the defendant.

[213] This principle was applied by the Ontario Court of Appeal in Krawchuk v. Scherback, 2011 ONCA 352 in the context of a building deficiency case involving a claim for damages in addition to receipt of title insurance proceeds.

[214] The Court of Appeal in Krawchuk v. Scherback, 2011 ONCA 352 upheld and applied the private insurance exception. Epstein J.A. explained the reasoning as follows:

The policy reason behind the application of the private insurance exception is that the wrongdoer should not benefit from the prudent decisions of the person wronged. As Cory J. said in Cunningham, at p. 400, the exception is based on fairness. It is unfair to allow a wrongdoer to benefit from the individual foresight and sacrifice made by the plaintiff, regardless of the nature or extent of the sacrifice.

[215] The Town submits that the private insurance exception should not apply in this case for policy considerations. It asserts that Mr. White is seeking double recovery which would fall upon the municipality and by extension, its tax payers. See: Waterman v. IBM Canada Ltd., [2013] 3 SCR 982, at paras. 41-53 and 70-76 and Mazzucco v. Herer, 2015 ONSC 7083, at paras. 10-11 and 19-22.

[216] The Town in cross-examination of Mr. Koerth established that Mr. Koerth or anyone else had not established the cause of the ice damming. I find it cannot be said that there is a claim for double recovery of this item. It cannot be established by the Town that the insurance funds paid on the settlement of the ice damming claim was for the same damages being claimed in this action. I find the claims are not the same; the damages are not the same.

[217] Further, I find the policy considerations advanced by the Town do not apply in this case and therefore it would be unfair and inappropriate to allow the Town and Mr. Grand to benefit from Mr. White’s foresight and sacrifice in obtaining home insurance.

[218] I find the Town and Mr. Grand are jointly and severally liable in the amount of $3663.02 for Mr. White’s out-of-pocket expense claim relating to the ceiling in the living/dining room. No contingency fee reduction applies. The evidence led by Mr. White proves this claim.

[219] Therefore, the Town’s submissions regarding deductibility fails.

ISSUE: (c) Was Mr. White Contributorily Negligent?

[220] The answer to this question is no.

[221] The Town submits Mr. White should be held contributorily negligent for failing to conduct due diligence before purchasing the Property especially after learning the house was not new and there were some construction problems. The Town submits that the court should make a finding of contributory negligence of at least 35%.

[222] I find that the evidence at trial establishes that Mr. White was very diligent in his pre-purchase review of the Property. He ensured that there would be a final inspection from the municipality confirming OBC compliance by condition in the APS. Despite his realtor’s advice that a home inspection was unnecessary, he took two friends who had experience in construction and real estate transactions to inspect the Property.

[223] The schedules to the APS are a testament to Mr. White’s diligence. When Mr. White did identify problems with the Property, he addressed them with Mr. Grand and had the resolution for each problem incorporated into the APS. Mr. White followed up with Mr. Grand regarding each of the scheduled items for repair. He even was successful in obtaining an abatement of the purchase price for driveway repairs. I find Mr. White acted reasonably and diligently.

[224] The Town which asserts contributory negligence bears the burden of satisfying the court on the balance of probabilities that Mr. White was contributorily negligent.

[225] The Town led no evidence, expert or otherwise of the standard of care or level of due diligence required by Mr. White nor did it elicit any objective or other evidence of a failure by Mr. White to meet that undefined standard. The cases relied upon by the Town do not apply in this case.

[226] The Town addresses allegations of contributory negligence at paras. 96 to 107 of its written closing submissions and cites two cases: Ingles v. Tutkaluk Construction Ltd., [2000] 1 SCR 1068 and Theriault v. Lanthier, 2010 ONSC 655.

a. The plaintiff in Ingles at para. 49 was the building owner at the time that the construction defect was created, and the court found the owner contributorily negligent because he allowed the construction to begin when he knew that the necessary permits had not yet been obtained. The court addressed the applicable standard of care that informed its finding of contributory negligence by reference to Rothfield v. Manolakos, wherein that court made it clear that the duty of care extends from a municipality to an owner (Ingles at para. 34). Mr. White was not the owner during the inspection process, nor did he permit construction to commence without obtaining the required permits. As such, the finding of contributory negligence in Ingles does not apply to the within action.

b. Theriault also does not apply. First, the citation at para. 106 of the Town’s closing submissions is obiter as it is a finding in the alternative; the court ultimately dismissed the plaintiff’s claim and thus did not find contributory negligence. Second, the cited text does not suggest “100% contributory negligence” as suggested by the defendant; rather as explained later in Theriault at para. 149, the cited text refers to “another basis upon which to reject the plaintiff’s claim”. Third, this alternative reason that the court found in Theriault at para. 148 was based on the fact that the plaintiff had direct knowledge of the defect being claimed. I find there is no evidence that Mr. White knew of the defects being claimed in the within action or that he should have done something pursuant to some legal standard to have identified those defects.

[227] The Ontario Court of Appeal recently addressed the consequences of a failure to call expert standard of care evidence in Metropolitan Toronto Condominium Corporation No 1100 v. A&G Shanks Plumbing & Heating Limited, 2020 ONCA 67 wherein a plumber was alleged to have negligently caused a fire that destroyed a building owned by the plaintiff. In siding with the defendants, the trial judge noted that the fact that the defendant plumber was effectively in control of the source of the fire can give rise to an inference of a breach of a standard of care. However, because the plaintiff failed to call any expert evidence to show that the plumber’s actions fell below a standard of care, the trial judge found that the plaintiff’s claim of negligence was not made out. The Court of Appeal agreed and dismissed the plaintiff’s appeal.

[228] In the within action, the defendants called no evidence – expert or otherwise – to establish an applicable standard of care for Mr. White as purchaser of a home that is undergoing construction and renovation. As in A&G Shanks, there is insufficient evidence of any applicable standard of care for the court to be able to find that Mr. White fell below it.

[229] There is no evidence that Mr. White learned that Mr. Grand “had not been truthful”. Mr. White testified that he met with Mr. Grand at the first viewing of the Property and was informed that Mr. Grand had “tore [sic] everything down to the foundation except the framing, doubled the foundation and built it back up” with all new plumbing and electrical. The home would be in effect, new and the work was being inspected by the municipality.

[230] Although Mr. White knew that the building permit existed, he was operating under the mistaken assumption that the permit applied to all construction. In this, he erred but such a mistake on the part of Mr. White does not give rise to contributory negligence. I find the Town’s claim for contributory negligence fails.

ISSUE: (d) Is Mr. White entitled to general damages and special damages for alternate living expenses?

[231] Dealing first with alternate living expenses, the answer to this question is yes. Mr. Grand and the Town are jointly and severally liable to Mr. White for his alternate living expenses in the amount of $3000 for the same reasons previously stated in respect of this claim.

General Damages

[232] For the following reasons, I find Mr. White is entitled to an award for general damages in the amount of $5000, for which the Town and Mr. Grand are jointly and severally liable.

[233] The Town takes the position that Mr. White should not be awarded any amount for general damages for mental injury as there was insufficient evidence put forward to support a serious and prolonged mental disturbance that rises above ordinary stress and injury. Mr. White admitted that his stress and embarrassment once this litigation was over. The Town submits his evidence related to embarrassment more than anything else.

[234] The Town agrees that Mr. White need not adduce medical evidence in order to be awarded general damages for mental injury. However, Mr. White has not established that he sustained a serious and prolonged mental disturbance above ordinary emotional upset or distress to trigger an award for general damages.

[235] I disagree for the following reasons.

[236] There is more to Mr. White’s claim for general damages than mere embarrassment. If it was only that, his claim would fail.

[237] However, I find the evidence establishes and supports his claim.

[238] The fact is that Mr. White has suffered inconvenience, distress, and a loss of enjoyment of his home for a prolonged period of time. He has been living in a partially finished house since 2014. He explained at trial that he finds it difficult to feel relaxed at home. He is embarrassed to have guests over given the continued presence of unfinished drywall and low temperatures.

[239] Mr. White testified that he is living in a house that is still very cold and has lots of drafts on both sides of the house. He explained that there is mold on both sides of the house, and his spouse has to use apple cider vinegar to clean the floors on a daily basis. Mice and snakes are getting into the house through the garage wall.

[240] Mr. White further testified that he feels that he has failed to provide his wife with a safe home. When he first learned of the unsafe lintel, he said it was difficult to leave the house and wondered if it would still be standing when he returned. He feared for his and his wife’s safety until the lintel was repaired. He has now learned – and Mr. Smith agreed at trial – that the over-spanned floor joists above the recreation room could cause that floor to collapse, which in turn could cause injury or even death. Six years after purchase, Mr. White is still burdened by the knowledge that his family is facing severe, potentially life-threatening risks every day they live at home.

[241] Mr. White testified he expected to purchase an all but new home whose construction had been overseen and inspected by the municipality. He did not want to buy a “fixer upper”. He was not a builder and was not looking for a building project. Nevertheless, he has spent countless hours conducting urgent repairs.

[242] I find Mr. White to be a credible witness regarding his claim for general damages. He did not overstate his claim and even to the date of trial continued to be disturbed by the safety issue regarding the structural integrity of his home. I accept his testimony and find that it has established that he has sustained a serious and prolonged mental disturbance above ordinary emotional upset and stress. Mr. White is awarded the sum of $5000 for general damages, for which Mr. Grand and the Town are jointly and severally liable.

ISSUE: (e) What is the extent to which the Town can recover on its crossclaim against Mr. Grand?

[243] The Town crossclaims against Mr. Grand for contribution and indemnity.

[244] The Town agrees with Mr. White’s submissions related to the liability of Mr. Grand for negligent construction. The Town agrees that Mr. Grand is liable to Mr. White for the cost of repairing the deficiencies.

[245] Regarding the Town’s crossclaim against Mr. Grand, the evidence at trial established Mr. Grand’s negligent construction and breach of the OBC resulting in building deficiencies for which Mr. Grand is responsible.

[246] The damages for repairs regarding which Mr. Grand and the Town have been found jointly and severally liable is the sum of $54,814.44 for the cost of repairs. In addition to this amount, Mr. Grand and the Town are jointly and severally responsible for the following amounts: out-of-pocket expenses for lintel, east wall drainage plus building permit fees $3392.59, $1356 (unfinished painting) $3663.02 (ceiling out-of-pocket expense) $3000 (alternate living expense) $5000 (general damages). The conceded out-of-pocket expenses and the additional out-of-pocket expense for the ceiling to which is added the additional painting expense of $1356, alternate living expense of $3000 and general damages of $5000 further total of $16,411.61 for these items. Added to the amount for repairs in the amount of $54,814.44 the total amount of damages is the sum of $71,226.05 ($54,814.44 + $16,411.61) regarding which Mr. Grand and the Town are jointly and severally liable to Mr. White.

[247] The Town shall have judgment on its crossclaim for contribution and indemnity against Mr. Grand in the amount of $71,226.05 plus prejudgment interest and costs.

[248] Mr. Grand has also advanced a crossclaim against the Town for contribution and indemnity. Mr. Grand alleges that if Mr. White suffered any damages, which is denied, the Town and not Mr. Grand is responsible. Mr. Grand relies on Mr. White’s allegations in his statement of claim. Mr. Grand did not attend or participate in this trial. I find that he has failed to prove his crossclaim against the Town. Therefore, I would dismiss his crossclaim against the Town with costs.

Apportionment

[249] The Town submits there ought to be an apportionment of liability as between the Town and Mr. Grand. The Town submits the apportionment of liability for the conceded deficiencies ought to be 80% to Mr. Grand and 20% to the Town. The Town cited caselaw to support this position.

[250] The evidence established deficiencies conceded by the Town. Those conceded deficiencies were OBC breaches – violations not caught by the Town’s building inspectors on inspection. The conceded deficiencies were itemized and cross-referenced in Mr. White’s Deficiency Chart. Counsel for the Town and Mr. White agreed and advised the court that the conceded deficiencies attracted joint and several liability. Mr. White was unsuccessful in proving the disputed deficiencies.

[251] Given the circumstances of this case, there shall be no apportionment of liability as between the Town and Mr. Grand. Their liability is joint and several as between them. For these reasons, I reject the Town’s submission that in this case regarding the conceded deficiencies and other damages so found, Mr. Grand should bear a greater liability than the Town. I reject this argument. The Town and Mr. Grand are jointly and severally liable to Mr. White without an apportionment of liability as between the Town and Mr. Grand.

CONCLUSION

[252] For these reasons, the Plaintiff Christopher Lee White shall have judgment against the Defendant Mark Grand for negligent construction and for breach of the Ontario Building Code. Mark Grand shall pay damages to Christopher Lee White in the amount of $91,179.40 assessed as follows:

• amount for repairs $89,585.47
• out-of-pocket expenses $7055.61
• total $96,641.08.

[253] Further, the Plaintiff Christopher Lee White shall have judgment against the Corporation of the Town of Bracebridge for negligence and breach of its statutory duty pursuant to the Ontario Building Code.

[254] The Corporation of the Town of Bracebridge and Mark Grand are jointly and severally liable for damages to Christopher Lee White and shall pay damages to Christopher Lee White assessed in the amount of $71,226.05 as follows:

• conceded out-of-pocket expenses (per Mr. White’s damages summary and permit costs) $3392.59
• additional out-of-pocket expense for ceiling $3663.02
• additional painting expense living/dining room $1356
• amount for repairs $54,814.44
• alternate living expense $3000, general damages $5000
• total of $71,226.05.

[255] The Town shall have judgment against Mark Grand on its crossclaim in the amount of $71,226.05.

[256] The crossclaim of Mark Grand against the Corporation of the Town of Bracebridge is hereby dismissed.

Prejudgment Interest and Costs

[257] As for prejudgment interest and costs, if the parties cannot agree, within ten days from the date of these Reasons, Mr. White shall serve and file a concise two-page summary regarding prejudgment interest and costs, together with a costs outline, Bill of Costs and any authorities. The Town and Mr. Grand shall have ten days thereafter to serve and file the same materials. If any reply is required, Mr. White shall serve and file his reply within five days of the Defendants’ submissions. All materials by the parties are to be filed with the Trial Coordinator at Barrie (Barrie.SCJ.TC@ontario.ca).

Mr. Justice G.P. DiTomaso

**Released:** June 2, 2020