BRACEBRIDGE COURT FILE NO.: CV-14-158 DATE: June 25, 2020
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
Supplementary Reasons for Judgment
DiTOMASO J.
[1] My Reasons for Judgment (White v. The Corporation of the Town of Bracebridge, 2020 ONSC 3060 “Reasons”) in this case were released on June 2, 2020. Subsequently, by letter dated June 4, 2020, counsel for the Plaintiff Mr. White and by letter dated June 10, 2020, counsel for the Defendant The Corporation of the Town of Bracebridge (the Town of Bracebridge), brought to my attention three calculation errors in my Reasons. I discussed these errors with counsel by way of teleconference on June 18, 2020.
[2] These are my supplementary reasons addressing those calculation errors.
[3] The calculation errors have been identified as follows:
- The calculation of damages relating to the cost of insulating the wall between the garage and the recreation room at para. 65 of my reasons, as it relates to the reduction of damages payable by Mark Grand and the Town of Bracebridge.
- The calculation of the judgment against Mark Grand at para. 252 of the reasons, seems to inadvertently omit the award of alternate living expenses and general damages awarded in the total amount of $8,000 at paragraphs 231 and 232 of the reasons.
- The contingency reduction calculation at para. 136, as it relates to the reduction of damages payable by the Town of Bracebridge.
1. Calculation at paragraph 65 as it relates to damages payable by Mark Grand and the Town of Bracebridge
[4] Essentially, we are dealing with the cost of insulating the wall between the garage and the recreation room. This is a relatively small non-Code amount. Unfortunately, this cost was never specifically identified in the FGM estimate or in the Deficiency Chart. Rather, this cost was included in other line items. It was always intended that this item (not being a non-compliance Code item) ought to have been subtracted from damages payable by the Defendant Mark Grand and the Town of Bracebridge.
[5] At para. 65 of the Reasons, I found the cost of insulating the wall between the garage and the recreation room was $24,056.71. This amount is incorrect. This amount consists of line items which provided costing for content manipulation, removal and replacement of all drywall, mould remediation and insulating the entire garage, including the walls, ceiling and storage areas identified under the heading GARAGE at page seven of the Deficiency Chart. (Appendix A of the Plaintiff’s Written Closing Submissions). The cost of insulating the wall between the garage and recreation room forms only a small portion of the overall $24,056.71.
[6] Page five of the Deficiency Chart does itemize the cost of insulating the wall between the garage and the recreation room as a separate line item – as being a portion of line 35 of the FGM estimate. Line 35 estimates the overall cost of insulation required for the entire garage area including the wall separating the garage and recreation room (an area of 1076 square feet) in the amount of $5984.08. The balance of the amount of $24,056.71 addresses content manipulation, removal and replacement of drywall for the entire garage walls and ceiling and mould remediation.
[7] I find the area of the wall between the garage and recreation room is approximately 100 square feet or approximately ten percent of the total area cost. (see diagram – gross internal area attached to FGM estimate Exhibit A Tab 8 for dimensions of this wall)
[8] I agree that the calculation of the cost of insulating the wall between the garage and the recreation room at $24,056.71 is an inadvertent miscalculation. It should be a proportional amount of the total insulation costs. In my view this would produce a fair and reasonable reduction of the amount for which Mr. Grand is responsible.
[9] Therefore, the appropriate calculation of the cost of insulating the wall between the garage and recreation room would be ten percent (on the basis that the wall represents ten percent of the garage area covered by these line items) of $24,056.71, or the sum of $2405.67. I find the difference of $21,651.04 shall be added to the damages awarded against Mr. Grand as set out at para. 86 of the Reasons. This will increase Mr. Grand’s liability for repair costs and out-of-pocket expenses from $96,641.08 to $118,292.12.
[10] Given the amount to insulate the wall between the garage and recreation room is a subtracted item, the amount of $2405.67 should also have been deducted from the amount for which the Town of Bracebridge was found liable for garage repairs in the amount of $34,558.93 (see para. 135 of the Reasons).
[11] The correct amount for the conceded deficiency regarding the garage repairs for which Mr. Grand and the Town of Bracebridge are jointly and severally liable is the sum of $32,153.26 ($34,558.93 minus $2405.67).
2. Calculation of the total judgment against Mark Grand at paragraph 252
[12] Although alternate living expenses of $3000 and general damages of $5000 were awarded to Mr. White for which the Town of Bracebridge and Mark Grand are jointly and severally liable, counsel agree those two amounts ought to have been included at para. 252 of the Reasons being amounts for which Mr. Grand is also personally liable. I agree. The judgment against Mr. Grand shall be increased by a further $8000 to account for these heads of damages.
3. Calculation at paragraph 136 as it relates to amounts payable by the Town of Bracebridge
[13] At para. 136 of the Reasons, a deduction of $13,703.61 for contingency is applied to reduce repair costs payable by the Town of Bracebridge for deficiencies for which it is liable.
[14] The contingency amount is a separate line item in the FGM estimate and a reduction for the contingency amount has appropriately been applied to amounts payable by Mark Grand, as the amounts payable by Mr. Grand were calculated by taking the entire FGM estimate, including the line item for the contingency, and then reducing the estimate by those items that are not recoverable, including the contingency amount.
[15] However, with respect to the calculation of damages payable by the Town of Bracebridge, these were calculated by adding up the line items in the FGM estimate for repair of those deficiencies for which the Town of Bracebridge has been found liable. Those line item amounts do not include any contingency, as the contingency amount is a separate item at line 18 of the FGM estimate and the court had already excluded it. I agree the line item costs for repairs, used to calculate damages, are the pure cost of repair without contingency.
[16] At para. 136, the amount of the conceded deficiencies for which the Town of Bracebridge and Mr. Grand were jointly and severally liable was calculated in the amount of $68,518.05 which was discounted by a contingency factor of 20% that number being $13,703.61.
[17] The application of this contingency factor is incorrect and was an inadvertent error. It was not intended to apply a second or further contingency amount. Counsel for both Mr. White and the Town of Bracebridge agree that para. 254 of the Reasons should be corrected to increase the total amount by $13,703.61 to $84,929.66 less the previous deduction for the uninsulated wall between the garage and the recreation room in the amount of $2405.67. I agree. Therefore, the correct amount is the sum of $82,523.99.
[18] Paragraph 254 of the Reasons shall be corrected to reflect judgment where The Corporation of the Town of Bracebridge and Mark Grand are jointly and severally liable for damages to Christopher Lee White in the amount of $82,523.99.
[19] Further, it follows that the Town of Bracebridge shall have a corresponding judgment on its crossclaim against Mark Grand in the amount of $82,523.99.
Conclusion
[20] For these supplementary reasons, paras. 252, 254 and 255 are hereby amended to reflect the correction of the preceding calculation errors as follows:
[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 $126,292.12 assessed as follows:
- amount for repairs $89,585.47 + $21,651.04 = $111,236.51
- out-of-pocket expenses $7055.61
- alternative living expenses $3000, general damages $5000
- total $126,292.12
[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 $82,523.99 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 + $13,703.67 - $2405.67 = $66,112.38
- alternate living expense $3000, general damages $5000
- total of $82,523.99
[255] The Corporation of the Town of Bracebridge shall have judgment against Mark Grand on its crossclaim in the amount of $82,523.99.
Prejudgment Interest and Costs
[21] Given these supplementary reasons for judgment the time for delivery of materials on prejudgment interests and costs has been amended.
[22] Paragraph 257 of the Reasons is amended as follows:
[257] As for prejudgment interest and costs, if the parties cannot agree, within seven days from the date of these Supplementary 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 of Bracebridge and Mr. Grand shall have fourteen 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 25, 2020