COURT FILE NO.: CV-17-588978 / CV- 17-583798
DATE: 20210729
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sheila McKenzie-Barnswell
Plaintiff
– And –
Xpert Credit Control Solutions Inc., Right Choice Builders Inc., Sam Joshi Also Known As Sanjive Joshi
Defendants
Olando Vinton, for the Plaintiff
Olubunmi Ogunniyi, for the Defendants
HEARD: February 25, 26, 27, 28, March 2, 3, 4, 2020, written submissions of the parties provided January 31, 2021
REASONS FOR DECISION
Carole J. Brown J.
Background
[1] The parties commenced actions against one another, arising from the same impugned transactions. The plaintiff, Sheila McKenzie-Barnswell (“the plaintiff” or “Dr. McKenzie-Barnswell”), alleges as against the defendants, Xpert Credit Control Solutions Inc. (“Xpert Credit”), Right Choice Builders Inc. (“Right Choice”) and Sanjive (Sam) Joshi (“Mr. Joshi”) fraud, fraud/misrepresentation or fraudulent misrepresentation, breach of contract, negligence, negligence in construction management, deceit, duress, unconscionability, and other torts which were not pursued in any vigorous way during the trial. These include the following: breach of the Unconscionable Transactions Relief Act, R.S.O. 1990, c. U.2; undue influence; breach of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A; conversion; breach of collateral warranty; and concerted action liability. The plaintiff seeks a declaration that the mortgage contract is null and void or is to be set aside. She claims damages in the amount of $1,355,280.33.
[2] The defendants claim against the plaintiff for damages of $1,355,280.33 for failure to pay monies owing pursuant to a charge/mortgage on the plaintiff’s property held by Xpert Credit dated March 16, 2017, in the amount of $1,260,000 and interest thereon at 9.99% per annum from December 19, 2017, and monies owing pursuant to a construction contract executed between the plaintiff and Right Choice.
[3] The actions were to be tried seriatim. At the commencement of trial, the parties agreed that the plaintiff’s case would be presented first.
[4] The trial was heard over a seven-day period. Written submissions were received January 31, 2021.
[5] I have spent a significant amount of time unraveling this case. It has been a difficult case to deal with given the inadequacy and insufficiency of evidence, the lack of sufficient or any evidence regarding certain claims, the lack of detail in many aspects of the case, the poor quality of the written material and closing submissions, and the inability or unwillingness on the part of the plaintiff to narrow the many causes of action put forth to those meriting the court’s attention and scrutiny.
Positions of the Parties
Position of the Plaintiff
[6] It is the position of the plaintiff that the defendant, Mr. Joshi, unconscionably used his friendship with the plaintiff to place mortgages through his company on the plaintiff’s property which were obtained by fraud or fraudulent misrepresentation. The construction contract, which was breached, was tied to the mortgages. The plaintiff seeks a declaration that the mortgage contracts are null and void or are to be set aside.
[7] It is the position of the plaintiff that Mr. Joshi perpetrated an unconscionable fraud against the plaintiff, placing mortgages on the plaintiff’s property at usurious rates of interest. Further, Mr. Joshi improperly represented that he was the director of Right Choice Builders Inc., a fictitious company which was not registered or incorporated. Further, Mr. Joshi, on behalf of Xpert Credit, represented that it was the construction manager for Right Choice, thereby inducing the plaintiff to enter a construction contract for work on her property, which was subsequently abandoned by the defendants without being completed.
Position of the Defendants
[8] It is the position of the defendants that the plaintiff is a sophisticated borrower and businesswoman, who has entered into numerous transactions and mortgages, knows and understands mortgages and contracts, and fully understood, read and signed the contracts regarding the impugned transactions.
[9] It is the defendants’ position that the plaintiff owes the full amount on the outstanding mortgage, namely $1,355,280.33. They submit that this is the only mortgage relevant to the proceedings, as all previous mortgages were paid by the subsequent mortgages taken out and discharged. I have nevertheless gone back to the mortgages taken out regarding the impugned construction contract.
[10] The defendants deny that there was any fraud, fraudulent misrepresentation, duress, deceit or breach of contract. They deny that the corporations, or any of them, were fraudulent. They deny that the construction contract was negligently undertaken or that they or any of them abandoned the construction prior to completion. They seek full payment of the mortgages and construction contract.
The Evidence
Evidence of the Plaintiff
Sheila McKenzie-Barnswell
[11] The plaintiff, Sheila McKenzie-Barnswell, works in dental medicine. Her office was located on Gerrard St. in Toronto. The plaintiff testified that she was a doctor of dental and international medicine, and had worked for 10 years with the United Nations in developing countries. Mr. Joshi testified that she practised homeopathic medicine.
[12] The plaintiff testified that she had known Mr. Joshi for over 15 years and stated that over that time they became good friends. He would drop by her office, go out for coffee and talk by phone. He helped her move when her marriage broke down. She testified that she considered him as a younger brother and her sons referred to him as “uncle”. He helped her to move things into a storage facility owned by an uncle of his after her marriage broke down, and he recommended another uncle to sell her previous home. She moved to 167 Merkley Square, Scarborough, approximately ten years ago.
[13] She had a history of borrowing small loans of $20,000 to $25,000 from Mr. Joshi’s company, for herself and for payment of her sons’ student loans, which she always paid back.
[14] When she needed advice on money management matters, the plaintiff would call Mr. Joshi.
[15] In 2015, her parents lived at 890 Kennedy Rd. There was a $250,000 mortgage with interest at 3.3% on the property from the Equitable Bank. The plaintiff wanted in-home care for her father. She discussed this with Mr. Joshi who arranged a loan through his corporation, Xpert Credit. She borrowed $90,000 from Xpert Credit to make her parents’ home “senior-friendly”, which was secured on the home as a second mortgage. The loan was taken out in July 2015 and came due six months later in February of 2016. It was renewed for an additional six months to August 2016.
[16] In August 2016, Mr. Joshi took over the first mortgage on the plaintiff’s parents’ home with Equitable Bank, which had an interest rate of 3.3%, and the second mortgage with his company of $90,000 at 9.9% and merged them into one mortgage at 8%. He told her that it would be better to do that, and that she would pay more if she had two mortgages.
[17] The plaintiff’s father died in March 2016. She requested funeral expenses of $17,000 to be added to the money owing to Xpert Credit, intending to sell her parents’ house and pay off the mortgage when it came due in August.
[18] The plaintiff testified that it was her intention to sell 890 Kennedy Rd., pay off the mortgage and put her mother in a residential facility because her mother was alone at the house. She contacted her real estate agent to this end. However, Mr. Joshi suggested that she keep the property, renovate it and have her mother live there with in-home care. He said it was a prime location and values would be increasing. He indicated that it would make them both a lot of money. She trusted his expert advice.
[19] She initially decided to follow his suggestion, then had misgivings, and became reticent to sign a construction contract. To ease her misgivings, Mr. Joshi took her to see two construction sites in July or August 2016, which he said would be similar to the renovations that he was proposing on her parents’ home. This reassured her.
[20] Mr. Joshi’s company, Xpert Credit, was to be the construction manager for the construction company, Right Choice. Mr. Joshi had his Xpert Credit account manager draw up a construction contract dated August 8, 2016, to be signed between the plaintiff and Right Choice, with the price of construction to be $295,000.
[21] The plaintiff again became hesitant to sign the Right Choice construction contract and mortgage. However, she testified that Mr. Joshi told her that if she did not sign the contract, she would have to pay him $70,000 for his wasted time and effort, including obtaining building permits for 890 Kennedy Rd., although she did not know why building permits had been obtained as no construction contract had been signed at the time. He further stated that he would call the mortgage on 890 Kennedy Rd. if she did not proceed with the construction work, and that she would have to pay both amounts immediately. As a result, she felt that she had no choice but to enter the contract, and therefore signed the construction contract.
[22] On August 8, 2016, the plaintiff entered into a construction agreement with Right Choice for construction to be undertaken at 890 Kennedy Rd., to be completed within “four months approximately”, according to the construction contract in evidence, for an all-inclusive sum of $295,000. The contract was signed by the plaintiff and by Mr. Joshi on behalf of and as director of Right Choice.
[23] On August 9, 2016, the plaintiff entered into a first mortgage commitment renewal with Xpert Credit for 890 Kennedy Rd. The principal amount was $552,200 at the interest rate of 8.99% for a term of six months. The mortgage was prepaid for the term in the amount of $3,937.07 per month. Further, the following amounts were charged, all payable to Xpert Credit:
lender fee of $22,850;
mortgage administration fee of $4,855;
prepaid six-month term of $23,622.42; and
file management fee of $1,849.87
Additionally, there was an amendment to the charge for $1,200, payable to Xpert Credit’s lawyer, Olubunmi Law Office.
[24] On August 10, 2016, the plaintiff signed a Blanket Second Mortgage Commitment which was placed on both 167 Merkley Square, Scarborough and 890 Kennedy Rd., Toronto in the amount of $450,000 at 12.99% interest for six months (through February 15, 2017). All the following amounts were payable to Xpert Credit, except for the broker fee which was payable to Dominion Lending Centre Central Inc. (“Dominion Lending”) and the lawyer’s fee:
prepaid interest on the mortgage for the six-month term was $29,227.50;
renewal lender fee of $42,585;
broker fee of $10,865;
lender administration fee of $7,855;
file management fee of $1,850; and
the legal fee for Xpert Credit’s lawyer of $2,000.
[25] The plaintiff testified that she never understood why one mortgage was secured on her property on Merkley Square, and the other on 890 Kennedy Rd., but trusted Mr. Joshi when he told her it had to be done that way. She believed he was acting throughout in her best interest.
[26] The plaintiff testified that Mr. Joshi told her that she should go to a lawyer that he did business with, rather than her own lawyer, in order to obtain independent legal advice for this transaction. He sent her to Fathima Inhaam (“Ms. Inhaam”). He told her not to go to her own lawyer. She went to the lawyer which Mr. Joshi recommended to her and signed the documentation.
[27] She understood that the mortgages would be temporary and would come due in six months, when the construction was to be completed in February 2017. However, she testified that the construction was nowhere near completion by February 2017. The plaintiff testified that when the mortgages came due and the work was not done, she felt trapped and in a bind. She testified that, in the circumstances, with the construction work not done, she could not obtain a mortgage from another lender. She testified again that the project had been put together by her trusted friend, Mr. Joshi, that he had told her that they would be going into the agreement together to make money and that it would be a “win-win” situation. He was to finish the construction so that they could sell it or remortgage. He put her in a place where she could not get funding and could not sell the property. She testified that it was as a result of his own doing that he did not get the money. Xpert Credit, as construction manager, did not do what they were supposed to do and made it impossible to sell the property. She signed the document because she was in a bind, had nowhere else to go and felt under intense pressure. She was under tremendous strain and felt as though her head were “on the chopping block”. The construction was not finished and she saw no way of solving the problem. She was hopeful that Mr. Joshi would turn things around for her, but he did not.
[28] Mr. Joshi told the plaintiff that the two mortgages would have to be consolidated. As a result, a new mortgage was signed on March 10, 2017 in the amount of $1,260,000, secured on 890 Kennedy Rd. and 167 Merkley Square. This mortgage discharged the first mortgage against 890 Kennedy Rd. in the amount of $557,075 and the Blanket Second Mortgage against 890 Kennedy Rd. and 167 Merkley Square in the amount of $541,263. She testified that she signed the mortgage because she was in a bind, construction on the property was not finished and she hoped that things would still work out. She did not understand why the mortgage was registered on both properties.
[29] As regards the construction contract and the borrowed amount of $295,000 for the construction work to be done by Right Choice, the plaintiff testified that she received none of that money herself and understood it had all been dispersed by Xpert Credit.
[30] The original construction agreement contained detailed schedules of the work to be completed. However, as of February 2017, when the work was to be completed, there were significant deficiencies. There were numerous items not completed, poor workmanship, poor quality of materials used and numerous deficiencies, some which resulted in unsafe conditions, flooding in the basement due to deficiencies in the poured concrete and mold. The plaintiff expressed her concerns in March 2017. She sent written complaints. Nothing was done. In August 2017, Mr. Joshi demanded more money regarding the construction in order to complete it; he wanted her to sign a new agreement which she refused to do. As a result, he became angry and left the property unfinished. He demanded payment in full of the outstanding mortgage.
[31] The plaintiff’s real estate agent went to the City, which advised that the property could not be sold as it was “under construction”. A building permit had been issued, but no approvals had been given by City inspectors with respect to the stages of construction to be done, and nothing had been completed nor any requisite inspections done and approved. She was advised that at each step of construction, the City inspector must inspect and approve the work that had been done before going on to the next stage of construction. At 890 Kennedy Rd., no inspections and no approvals had been done for any of the construction, including footing foundations, structural framing, insulation and vapour barrier, fire separations, interior final inspection or external final inspection. Further, there had been no HVAC final inspection, nor any inspections of drainage, vents, water distribution or plumbing. Therefore, no occupancy permit had ever been granted by the City and the property could not be occupied.
[32] Mr. Joshi, who had encouraged the plaintiff to have all of the construction work done and incur significant debts, would do nothing, so she filed her statement of claim and, in return, he commenced a power of sale proceeding.
[33] Dr. McKenzie-Barnswell testified that if she had sold the property in 2017 as she had intended to prior to Mr. Joshi convincing her to borrow money from him and renovate because it would be a “win-win” situation, she would have been okay. She testified that she knew she was dealing with Mr. Joshi and his companies but relied on him to be honest with her. He deceived her and abused her trust. As a result, she is faced with a $1.2 million mortgage. He told her to sign documents with respect to Right Choice, a company that was not incorporated and that did not exist. She stated that she subsequently was advised that Right Choice was a fictitious company, which was not incorporated. She has no idea where the $295,000, borrowed for the original construction contract, went. She never received or disbursed any of it.
Rohan Barrett
[34] Rohan Barrett (“Mr. Barrett”) is a licensed renovator with over 20 years of experience. His company, RoPro Contracting Inc., has been incorporated since 2010. Prior to that time, he worked with various builders.
[35] He was asked to do a site inspection of 890 Kennedy Rd. to bring the building permit for the property into compliance with the application and with the Ontario Building Code (“OBC”). Following his site inspection, he prepared a site evaluation report dated August 20, 2019 which was adduced in evidence.
[36] Mr. Barrett concluded, after his inspection, that the work completed on 890 Kennedy Rd. was not done pursuant to the OBC, nor in compliance with the permit drawings and the construction agreement, and that the construction displayed negligence and poor workmanship.
[37] He reviewed the most salient deficiencies, as follows:
Improperly installed window wells, permitting water to seep into the home, with signs of water damage on the inside walls.
Improper grading and sloping, resulting in water damage and mold to interior south side; holes in wall permitting water to flow into the basement, resulting in mold from the water intrusion.
Partially installed sump pump. Lacks check valve, meaning that eventually system would fail. Lacks proper connections and ventilation to exterior; failure to connect sump pump to drain, contrary to the OBC, resulting in visible water damage.
Concrete failing on the below-grade side entrance, likely due to failure to use rebar for strength, vibrator for settling the earth, and incorrect strength of concrete (a minimum of 32 MPA). Faulty concrete slope on side, resulting in constant intrusion of water on the inside of the house, must be removed and sloped correctly. Concrete must be redone to ensure that the concrete foundation which supports the pillars does not collapse.
The railing to the outside below-grade entrance is not properly installed, resulting in instability. The wooden section must be replaced with aluminum or another exterior type of material to withstand the outside elements.
Unfinished flashing, eavestrough and downspouts, currently causing water to pool and water damage or premature decay.
In order to obtain City approval of all work done, the work already done must be undone including the footings and drain which must be inspected by the City prior to going on to the next construction stage; the electrical work must be exposed, requiring the internal walls to be removed to expose it for City inspection; the walls covering the plumbing that was already done must be removed for City inspection and all other requisite inspections must be done by City inspectors. Permits for safety and occupancy will not be granted by the City until the construction work is completed.
[38] Mr. Barrett estimated that for him to correct all of the deficiencies, it would cost $152,000 plus HST, at a minimum, at the time of his inspection, although he indicated that any estimate provided would be partial, as he could not determine the extent of all work to be done and did not know what additional work may be discovered under the walls and required by the City.
[39] He further noted that the construction contract schedules had not been complied with. Wood for the flooring was not oak as the contract specified, but cheaper laminate. Additionally, lights specified in the contract were missing.
Harjinder Singh
[40] Harjinder Singh (“Mr. Singh”) is a civil structural engineer with eight years experience. For the past seven years, he has owned his own company, MEM Engineering Inc.
[41] Mr. Singh conducted an inspection and assessment of 890 Kennedy Rd. on November 12, 2018 and prepared a report. He noted 11 issues, which were substandard or not done pursuant to the OBC.
[42] As regards the construction work conducted on 890 Kennedy Rd. by the defendants, Mr. Singh identified the following issues:
The front porch is not made as required by the approved permit drawings;
The window well was not constructed to specifications and not constructed properly. As a result, it has caused water to leak inside and caused mold in the interior and insulation, which is a health issue.
The driveway and concrete are not as per the slope of the waterway. Rather, they slope toward the foundation such that water will flow toward and not away from the building. The grading was not properly done and will cause water to flow into the basement. Further, the driveway had cracked after only two years, indicating that poor material was used.
HVAC: The wall partition is too close to the furnace, contrary to the OBC, causing a fire hazard. The furnace has no breathing room. The wall was not constructed 2 feet from the furnace as required by the Fire Code. Plumbing lines are hanging freely and must be corrected.
The work was not finished pursuant to the construction contract specifications, detailed in the Schedules attached to the construction contract (wainscoting, moldings, substandard flooring rather than oak hardwood). The materials used were cheap and substandard and the workmanship was bad. Built-in cabinets in the kitchen, laundry and mudroom were not provided. Kitchen cabinets were to be built to the ceiling but were not. Only 14 pot lights were provided rather than the 40 specified.
The sump pump was not functioning and cannot remove water leakage as presently constituted.
As regards the below grade entrance to the basement, the sump pump does not work to prevent leakage and the guard rail is not properly installed. The rail is insecure and constitutes a safety issue.
No inspections were done by the City and no occupancy permit was obtained. It is the responsibility of the contractor to contact the City at the completion of every stage of construction in order to have that stage of the construction inspected and approved by the City in order to go on to the next stage. This was not done.
The Defendant’s Case
Mr. Joshi
[43] Mr. Joshi met the plaintiff in 2008 through a real estate paralegal. He testified that the plaintiff needed a second mortgage on a property on Victoria Park, because she was in default and facing a power of sale. There was no evidence of this, and I do not take it into consideration.
[44] He testified that he is a certified credit counsellor with the Ontario Association of Credit Counselling and has been a mortgage broker since 2007 with Dominion Lending Central Inc. (“Dominion Lending”). He is one of three directors of Dominion Lending.
[45] He testified that he did a credit check on the plaintiff and discovered that she had a D credit rating. He discovered that all of her credit cards were maxed out and that she was behind more than six months on some bills and judgments. There was no evidence of any of this adduced at trial. He testified that he wanted to assist her in getting her finances in shape.
[46] Mr. Joshi testified that the plaintiff would call him for financial advice from time to time. She wanted to sell her property and he referred her to his uncle. On another occasion, she needed to store furniture after her marriage broke down and he referred her to another uncle who owned a storage facility and trucking company.
[47] He denied that he convinced her or suggested that she renovate 890 Kennedy Rd. and stated that he did not remember taking her on a tour of other properties under construction in order to convince her to do so. He further denied that he told her that if she did not go ahead with the construction contract, he would call in the mortgages.
[48] The plaintiff purchased 167 Merkley Square and asked for a loan of $28,500 for a six-month term. She renewed the loan for another six-month term. She then went to the bank to refinance the home and repay Xpert Credit’s second mortgage. She borrowed a mortgage of approximately $300,000 regarding 167 Merkley Square from the Bank of Montréal for five years at 3.99%. Mr. Joshi had the second mortgage on the home of $24,500.
[49] The plaintiff wanted to borrow money secured on her parents’ home to make their home at 890 Kennedy Rd. “senior-friendly”. Mr. Joshi did a credit check and an appraisal of the property, which he appraised at $410,000. He loaned her a second mortgage from his private lending company in the amount of $90,000 on 890 Kennedy Rd., prepaid for six months at 8.99%.
[50] He testified that the plaintiff’s sister and brother-in-law had a construction company and did work on the house to make a rental unit in the basement which rents at $800 per month. No lease was adduced in evidence. The plaintiff vigorously denied this, stating that the home was a single-family dwelling, there was no rental unit and no part of the house was rented out. Prior to her mother’s death, her mother lived on the first floor and her sister moved to the basement to take care of her parents. She stated that since her mother died in 2018, her sister lives in the part of the house where her mother lived, and her two sons live in the house as well. None of them pay rent.
[51] Mr. Joshi testified that he also loaned the plaintiff a mortgage to pay off a CHIP equity mortgage on her parents’ home in the amount of $410,000, plus the $90,000 for renovations and $10,000 for a car. There was no documentation with respect to the $10,000.
[52] He stated that from January through August 2016, the plaintiff and he had a “fantastic relationship” with the plaintiff coming to his home for high tea or chai. He testified that she liked the renovations that had been done in his home. She wanted him to assist her in figuring out how to renovate her parents’ property and help her sons, who each paid rent downtown. She mentioned selling 890 Kennedy Rd. He told her that she could sell the home or renovate. He testified that she asked if he could assist her with renovating 890 Kennedy Rd.
[53] A construction contract was signed on August 8, 2016 between Right Choice and the plaintiff. The contract was prepared by R.K. Lakhanpal, Mr. Joshi’s account manager at Xpert Credit. At trial, Mr. Joshi testified that Right Choice was not incorporated and was just a name he used on this contract and on other business contracts from time to time. Right Choice was a fictitious company. He stated that usually he just used his own company, Xpert Credit, in care of a subcontractor. The contract was signed in his office and included a list of work to be done.
[54] After the contract was signed, there were two mortgages on the properties, the construction loan registered on both 890 Kennedy Rd. and 167 Merkley Square (the August 10, 2016 Blanket Second Mortgage Commitment) in the amount of $450,000 at 12.99% for six months. The monthly interest payments (prepaid) were $4,871.25 per month and renewal fees, brokerage fees, lender fees, file management and lawyers’ fees were charged. From this amount, the lender, Xpert Credit, was to hold back $300,000 for construction and renovation work to be done. Mr. Joshi testified that the plaintiff wanted him to do the construction and the money was held back for that purpose.
[55] The first mortgage commitment on 890 Kennedy Rd., which had been in the amount of $410,000, was renewed for another six-month term at 8.99%, with prepaid interest at the end of the term added, with the total amount of the mortgage due February 24, 2017 in the amount of $552,200.
[56] Mr. Joshi testified that in March 2017, both mortgages were consolidated into one in the total amount of $1,260,000. He further testified that the plaintiff had independent representation, again with Ms. Inhaam.
[57] Mr. Joshi testified that at that time, all of the construction was completed but that the plaintiff continued to roll out the mortgage amounts. He testified that she was happy to have the mortgages consolidated. However, it was her testimony that the construction work was not done, she was stressed by the situation and felt that she was being taken advantage of. Her testimony was that she did not understand why this was being done, or why the mortgages were consolidated. She continued to trust Mr. Joshi.
[58] Mr. Joshi denied that the plaintiff was not happy that the mortgages had been consolidated and denied that she told him that he was taking advantage of her. However, an email dated May 15, 2017, and in evidence at the trial, confirmed that she had advised Mr. Joshi that she felt as though she were being taken advantage of. He further denied that work specified in the Schedules to the construction contract had not been done, including a failure to lay oak hardwood floors rather than cheaper laminate floors. However, the evidence of both Mr. Barrett and Mr. Singh, who were independent witnesses, and their reports of inspections done at 890 Kennedy Rd., confirm that there was no oak hardwood and that many other items included in the Schedules had not been done, nor finishings included.
[59] As regards the construction work, Mr. Joshi testified that all construction had been completed in February 2017. All construction had been done in accordance with the drawings submitted to the City and according to the bylaws and all approvals from the City had been obtained as at February 2017. No certificates of approval were adduced in evidence to support this statement. When shown the Building Permit obtained on January 27, 2017 for the construction at 890 Kennedy Rd., Mr. Joshi initially stated that the construction work was completed within one month. He subsequently changed his testimony when confronted with emails from the plaintiff regarding the unfinished work, and stated that it was 90% completed by February 2017. He ultimately stated that he had another company try to complete the work to the plaintiff’s satisfaction in August 2017.
[60] As regards the fictitious company, Right Choice, Mr. Joshi testified that the plaintiff did not care what the contract said regarding a construction company as she knew that he was doing the work, arranging the mortgages, lending the money, arranging contractors and performing supervision work on the construction. When asked whether he had paid Right Choice the $295,000 for the construction, he simply stated that regardless of what company did the work, the construction was done. He stated that the plaintiff always knew that he, Xpert Credit and Dominion Lending (the brokerage), were going to perform the work.
[61] I note that Dominion Lending was the brokerage, and not involved in construction. I note further that Mr. Joshi was one of three directors of that company, and served to benefit by using the company. Mr. Joshi confirmed that he is one of three directors of Dominion Lending. He confirmed that all fees except the broker fee and the legal fees went to him and Xpert Credit.
[62] Mr. Joshi admitted that Right Choice did not exist.
[63] He further testified that the work was delayed because they could not work on the weekends as the plaintiff’s elderly mother did not want them to work on the weekend. Nor could they work before 10 a.m. during the week.
[64] He testified that the plaintiff’s sister and brother-in-law, who he stated had a construction company, started intervening and doing work with their own construction workers so that his contractors could not work. They threatened his staff and then told them to leave, as the brother and sister did not like what they were doing. He testified that they told him they would call the police. He stated that the brother-in-law and sister were not doing things according to the approved plan and that he did not want to do anything illegal.
[65] As regards this last testimony, first raised by Mr. Joshi in cross-examination, the plaintiff was permitted to return to the stand regarding this one issue raised by Mr. Joshi, namely that the plaintiff’s brother and sister-in-law did construction on the house while his contractors were still there. The plaintiff testified that at the time of the construction, her sister had cancer and was severely ill. Her mother’s bathroom was leaking and so she called a “church brother” to fix the leak. He also polished the floor in her mother’s living area. That was all the work that was done by someone other than Mr. Joshi or his contractors and had nothing to do with the construction which was to have been undertaken by Mr. Joshi or his contractors.
[66] While Mr. Joshi testified that the plaintiff wanted him to construct two kitchens and that this was illegal given the building permit, the plaintiff testified that he had proposed a kitchen and a kitchenette.
[67] Mr. Joshi attempted to introduce evidence to support his theory that the home was being used illegally for three rental units. To this end, he produced a report by Apex Property Management, dated March 18, 2019. Apex was the same company he had originally sent in August 2017 to assess the work to be done to complete the construction. Apex did no work on the home in 2017, because it demanded of the plaintiff $5,000 more for its work, which the plaintiff refused to pay. I do not find Mr. Joshi’s theory, raised by the defendants, to be relevant to the issues raised in the pleadings, and have not based any of my decision on the evidence or the 2019 Apex Report.
Credibility
[68] Dr. McKenzie-Barnswell’s testimony was straightforward, forthright and candid. It was consistent throughout and consistent with the documentation. I found her to be credible throughout.
[69] Mr. Joshi testified on his own behalf and on behalf of Xpert Credit and Right Choice. He was not forthcoming in much of his testimony, changing his answers and contradicting earlier answers as it suited him and his narrative. His answers were often inconsistent with his previous testimony or with the documentary evidence with which he was confronted. He was often defensive in his answers. He obfuscated when it suited him.
[70] I did not find Mr. Joshi to be credible throughout and where there were contradictions in the answers of the plaintiff and Mr. Joshi, I prefer the evidence of the plaintiff, unless I indicate otherwise.
[71] I accept the evidence and reports of both Mr. Barrett and Mr. Singh. They were both independent witnesses with no personal interest in the case.
Analysis
Transactions with Mr. Joshi
[72] In 2015, the plaintiff’s elderly parents lived at 890 Kennedy Rd. There was a $250,000 mortgage with interest at 3.3% on the property from the Equitable Bank. The plaintiff wanted in-home care for her father. She discussed this with Mr. Joshi who arranged a loan through his corporation, Xpert Credit. She borrowed $90,000 from Xpert Credit to make her parents’ home “senior-friendly”, which was secured on the home as a second mortgage. The loan was taken out in July and came due six months later in February of 2016. It was renewed for an additional six months to August 2016.
[73] In August 2016, Mr. Joshi took over the first mortgage on her parents’ home with Equitable Bank, which had an interest rate of 3.3%, and the second mortgage with his company of $90,000 at 9.9% and merged them into one mortgage at 8%. He told the plaintiff that it would be better to do that, and that she would pay more if she had two mortgages.
[74] Prior to the construction to be completed on 890 Kennedy Rd. and the substantial amounts of money advanced by Mr. Joshi through his company, Xpert Credit and Dominion Lending, of which he was one of three directors, the amount of mortgage owing on 890 Kennedy Rd. was $410,000.
[75] Mr. Joshi began to lend the plaintiff more and more significant amounts of money for six-month terms, rolling them over after each six-month term. Prepaid interest and fees were added to each renewal.
[76] The defendants submit that no previous mortgages are relevant to their claim. They maintained that only the last mortgage of $1,260,000 is relevant as regards the issues in dispute.
The Plaintiff was not a Sophisticated Borrower
[77] Based on the totality of the evidence, I do not find the plaintiff to be a sophisticated businesswoman, conversant with lending and mortgages. While she had borrowed small amounts of money in the past, and paid them back, I do not find her to have been experienced in that area, as urged by the defendants. Her state of affairs when she first met Mr. Joshi bespeaks a lack of business sophistication. Indeed, Mr. Joshi himself indicated that she had a poor credit rating and needed his assistance regarding financial matters, including improving her credit rating, which assistance he said he gave. It appears that the plaintiff came to trust and rely on him. I do not find her to have been sophisticated as regards business or finance.
[78] Instead, I find the plaintiff to have been trusting of Mr. Joshi, who she saw as an expert in the area of financial matters and as a friend. I find that she relied on him with respect to financial matters and borrowing, and followed his recommendations, directions and instructions in that regard. She signed the documentation he told her to sign. While she indicates that she read the documentation before she signed it, it is not clear to me that she understood the documents or the import of all of the contents of the documentation.
[79] The mortgage renewals that she signed every six months each included significant fees, which added to the debt burden.
[80] It had been the plaintiff’s intention to either sell the property or to renovate.
[81] At the recommendation of her trusted friend, Mr. Joshi, who indicated that 890 Kennedy Rd. had a significant value which would increase such that she should keep the property and renovate it, rather than selling it, she entered into a construction contract, at Mr. Joshi’s recommendation, with his company, Right Choice, with the construction to be managed by his company, Xpert Credit. As Mr. Joshi later admitted, at trial, the construction company, Right Choice, was not incorporated. He further admitted that the company was a fictitious company that he sometimes used for contracts. The company was to be paid the specified amount for the construction at 890 Kennedy Rd., namely $295,000 which was to come from the mortgage advanced for the construction. Xpert Credit was to hold back that amount for the construction and renovation work.
[82] It would appear that it was Mr. Joshi and his company, Xpert Credit, that would have benefited from much of the monies that were paid. He and his company further benefited significantly from the rollover of all of the six-month mortgages through the fees that were payable on said mortgages. Indeed, Mr. Joshi confirmed that most of the fees went to his companies.
[83] The construction was done poorly, breached the OBC and Fire Code, took much longer than stated in the construction contract and was left uncompleted. Mr. Joshi denied that it had taken longer than stipulated, and then subsequently when confronted with evidence which supported the fact that there were significant delays, changed his testimony indicating that 90% of the construction had been done by February 2017, which was not correct based on the plaintiff’s evidence and on the evidence proffered by Mr. Barrett and Mr. Singh, which I accept. Indeed, Mr. Joshi finally acknowledged that he sent in a company, Apex, to attempt to complete the work. However, that company demanded more money of the plaintiff, who refused to pay more money. Mr. Joshi further attempted to excuse the state of the work and workmanship by stating that the work that was poorly executed and contrary to the OBC and Fire Code or contrary to the building permit issued, was done by someone else brought in by the plaintiff and not by him or his workers. There was no evidence of that adduced at trial. Based on all of the evidence adduced, I do not accept that as correct or truthful.
[84] Based on all of the evidence, I find that the defendants abandoned the construction on 890 Kennedy Rd., leaving shoddy workmanship, deficiencies and incomplete work, as well as construction that breached the OBC and Fire Code. They failed to obtain the approval of City inspectors at each construction phase, as required. As a result, the plaintiff has suffered damage to the property, due to leakage, and construction work that has resulted in unsafe conditions in the home. It will cost a significant amount of money in order to repair the damage done as a result of the work undertaken by the defendants. Given the conditions of the home and the fact that none of the construction phases have been approved as should have been done pursuant to the building permit, the OBC and Fire Code, the evidence of Mr. Barrett and Mr. Singh was that the property should not be occupied and cannot be sold until all construction work is completed and all approvals obtained.
Construction Work
[85] The evidence indicates that Right Choice, misrepresented as being incorporated, was to undertake the construction on 890 Kennedy Rd. and Mr. Joshi was a director of the company. The evidence further indicates that Mr. Joshi was a director of Xpert Credit, which was to be the construction manager. It is unclear from the evidence adduced what company or individual actually worked on 890 Kennedy Rd. Reference was made by Mr. Joshi to a “Mr. Bob”, although there is no evidence adduced as to who this was or what, if any, work he may have done on the property.
[86] The evidence indicates that the workmanship was deficient and, indeed, shoddy. The work was not done according to the construction contract entered into between the plaintiff and Right Choice; the OBC and Fire Code were not complied with and the requirements of the building permit were not fulfilled. Further, the work was abandoned and the project not completed. The responsibility for ensuring that all construction was done as required and pursuant to the building permit, the OBC and Fire Code was that of the construction manager, Xpert Credit, and Mr. Joshi.
[87] This is evidenced by the inspections conducted and the reports done by Mr. Barrett and Mr. Singh.
[88] There is no evidence that any supervision by Xpert Credit of the construction work occurred.
The Causes of Action
[89] In the context of the numerous causes of action raised by the plaintiff as set forth in the first paragraph of this decision, I will review below those which, in my view, are determinative of this case.
Negligence
[90] The plaintiff claims that the defendant, Xpert Credit, was negligent in managing the construction at 890 Kennedy Rd.
[91] In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3, the Supreme Court set forth the requirements for a successful negligence action, as follows. The plaintiff must demonstrate 1) that the defendant owed him or her a duty of care, 2) that the defendant’s behaviour breached the standard of care 3) that the plaintiff sustained damage, and 4) that this damage was, both factually and legally, caused by the defendant’s breach.
[92] Xpert Credit owed the plaintiff a duty of care in managing the construction at 890 Kennedy Rd. It was foreseeable that its failure to do so could cause physical harm to the plaintiff’s property, which indeed it did: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 36.
[93] Further, I find that Xpert Credit breached the standard of care. There was no evidence presented to establish that Xpert Credit actually supervised any construction. Based on the reports provided by the independent contractors who inspected the property, the work was negligently undertaken, breached the applicable OBC and Fire Code and was never completed.
[94] Property damage and loss were sustained by the plaintiff as a result of the defendants’ negligence, for which the defendants are liable.
Breach of contract
[95] The plaintiff further claims that the defendants breached the construction contract, failing to complete the construction project as specified in the construction contract, failing to use the products specified, failing to employ the proper finishings and detailings, conducting the work in a deficient and defective manner and abandoning the contract, leaving the work unfinished. Further, based on the inspection reports of Mr. Barrett and Mr. Singh, specified products and finishings, such as oak flooring, were replaced with cheaper products.
[96] Further, the work was to be completed within four to six months pursuant to the terms of the contract. In fact, the work was never completed.
[97] The contract was breached.
[98] As I have found below, the contract is null and void and is to be set aside, as it was entered into fraudulently with what was ultimately determined to be a fictitious, non-existent company.
False or Fraudulent Misrepresentation
[99] In order for a statement to be capable of being a misrepresentation, it must be a statement of fact, not opinion: Chung v. Lite-Way Subs and Deli Inc. [2001] O.J. No. 3746 (“Chung”), citing PM Foods Ltd et al. v. Pizza Hut et al., 1985 CanLII 1301 (AB KB), 6 CPR (3d) 330 (Alta QB) at 364; Fridman, Law of Contracts in Canada, 4th ed. (Toronto, Carswell: 1999), at p. 310.
[100] To establish a claim for fraudulent misrepresentation, the following must be proven:
a false representation was made by the defendant;
which was knowingly false;
which was made with the intention of deceiving the plaintiff; and
which materially induced the plaintiff to act, resulting in damage.
Chung, citing MacKenzie Financial Corp. v. McRae [1998] O.J. No. 4904, at para. 89; Ronald Elwyn Lister Ltd v. Dunlop Canada Ltd (1978), 1978 CanLII 2165 (ON SC), 19 O.R. (2d) 380 at 393, rev’d on other grounds, (1979) 1979 CanLII 75 (ON CA), 27 O.R. (2d) 168, rev’d on other grounds, 1982 CanLII 19 (SCC), [1982] 1 S.C.R. 726.
[101] Whether a false statement is fraudulent depends on whether it is made knowingly or recklessly. Thus, it need not be made with an intent to deceive; it is sufficient if it is made without regard for its truth, with a view to obtaining the reliance of the recipient on it: Chung, at para. 158.
[102] The test for materiality is an objective one; the representation in question must be relevant or material to the substance of the contract: Keleman v. El Homiera, 1999 ABCA 315, 73 Alta. L.R. (3d) 399 (“Keleman”), at para. 19, leave to appeal refused, [2000] S.C.C.A. No. 40.
[103] Based on all of the evidence in this case, Mr. Joshi falsely represented to the plaintiff that his company, Xpert Credit, would act as construction manager for Right Choice, of which he also was a director. Right Choice would undertake all of the construction to be done on 890 Kennedy Rd. Mr. Joshi made the statement knowing that it was false in that Right Choice was a fictitious company which he sometimes used for contracts. It was not incorporated and did not exist. In my view, he made the false statements deceptively and with the intention of having the plaintiff agree to having the work done and entering into a contract with Right Choice, a fictitious company. This materially induced the plaintiff to act to her detriment. It was unclear from all of the evidence who or what company actually undertook the construction, which was never finished. Due to the shoddy workmanship and many deficiencies, the plaintiff suffered loss and property damage.
[104] Mr. Joshi’s fraudulent misrepresentation to the plaintiff regarding the construction to be undertaken and who would be doing it constituted fraud and misrepresentation. It caused the plaintiff to enter into a construction contract with a fictitious company and to take out a construction mortgage.
[105] Due to the fraudulent misrepresentation, both the construction contract and the mortgage taken out for purposes of undertaking the construction are set aside. I note that the construction mortgage was subsequently rolled over into the mortgage of $1,260,000, which is the subject of this action. That mortgage is also tainted by the fraudulent misrepresentation and is set aside.
Unconscionability
[106] The law in Ontario as regards unconscionability is as set forth in Titus v. William F Cook Enterprises Inc., 2007 ONCA 573, 284 D.L.R. (4th) 734, affirmed in Kielb v. National Money Mart Company, 2017 ONCA 356 and Phoenix Interactive Design Inc. v. Altarinvest II Fund LP, 2018 ONCA 98, 420 D.L.R. (4th) 335 (“Phoenix Interactive Design Inc.”).
[107] As stated by the Court of Appeal for Ontario in Phoenix Interactive Design Inc., at paras. 15 and 39, the conditions required to establish unconscionability are as follows:
(a) a grossly unfair and improvident transaction;
(b) a victim’s lack of independent legal advice or other suitable advice;
(c) an overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
(d) the other party’s knowingly taking advantage of this vulnerability.
[108] Contrary to the submissions of Mr. Joshi, I do not find the plaintiff to be a sophisticated businesswoman as regards mortgages, loans and credit. Her credit rating was not good and she had borrowed from various sources. As regards the mortgages in question, she did not appear to understand or appreciate what was occurring. She trusted Mr. Joshi and appeared to be following his direction throughout. When contracts were entered into, she was not in a position to bargain as regards the terms of those contracts, and there was no bargaining on her part.
[109] Based on the plaintiff’s testimony with respect to the loans from Mr. Joshi, which I prefer to Mr. Joshi’s testimony, he told her not to go to her usual lawyer for independent legal advice regarding the transaction, but rather to go to a lawyer he used and recommended. At his recommendation, she went to that lawyer, Ms. Inhaam. I am not satisfied that she had the requisite independent legal advice. I am not satisfied, based on the evidence adduced, that the plaintiff fully understood the nature of the terms and effect of the mortgages.
[110] As regards the mortgages extended by the defendant’s company, Xpert Credit, to the plaintiff and continued to be rolled out every six months, fees were paid by the plaintiff to Xpert Credit, every six months in the amount of $20,000-$30,000, in addition to the prepaid interest.
[111] The plaintiff argues that this was usurious and criminal in nature. The plaintiff did not provide any evidence to establish that it was usurious in the legal sense, nor that it was a criminal rate of interest pursuant to the Criminal Code, R.S.C. 1985, c. C-46. As regards the percentage of interest charged for each six-month mortgage, again, there was no evidence to compare the amount charged with the prime lending rate.
[112] Nevertheless, in my view, the mortgage transactions extended to the plaintiff were designed to provide a regular stream of income to Mr. Joshi and his companies. I find them to have been improvident transactions for the plaintiff.
[113] I find that the plaintiff was at a disadvantage entering into the mortgage agreement and the construction contract. Based on all of the evidence before the court, I do not find the plaintiff to have been a sophisticated, experienced businesswoman possessing knowledge about construction contracts, mortgages or financial affairs generally, as has been urged by Mr. Joshi. The plaintiff was doing business with an individual, Mr. Joshi, who was sophisticated and knowledgeable as regards mortgages and contracts. Further, she trusted Mr. Joshi as a friend. Mr. Joshi knew this and appears to have used the plaintiff’s trust to benefit himself and his companies. Given all of the foregoing, I find that there was an overwhelming imbalance in bargaining power, given her relative lack of knowledge in the area and her trust of Mr. Joshi.
[114] I find that Mr. Joshi, knowing the plaintiff’s lack of knowledge and sophistication in the area, and knowing that she had placed her trust in him, knowingly took advantage of her vulnerabilities.
[115] I find the transactions, including entering into the construction contract and the mortgages of August 10, 2016 and the merged mortgage in the amount of $1,260,000 on March 10, 2017 with interest, were unconscionable and are to be set aside.
The Tort of Deceit
[116] For the tort of deceit, four main elements of the tort must be established, as follows:
i) there must be a false representation of fact;
ii) the representation must be made with knowledge of its falsity;
iii) it must be made with the intention that it be acted on in a manner which resulted in damage; and
iv) it must be proven that the plaintiff acted upon the false statement and has sustained damage by so doing.
Keleman, at para. 7.
[117] As regards materiality, it is not a defence to say that the misrepresentation was not material or would not have induced a reasonable person. The true question is whether the statement was a real inducement to the plaintiff; a representation may be material as between the parties, although not to a normal person: Keleman, at para. 8.
[118] When dealing with the tort of deceit, the appropriate test to measure the materiality of the representation and reliance on it are subjective: Keleman, at paras. 9-10.
[119] In the case before this Court, Mr. Joshi represented that Xpert Credit was the construction manager for the renovations at 890 Kennedy Rd.; it would act as construction manager for Right Choice. At trial, Mr. Joshi admitted that Right Choice was a fictitious company which he and Xpert Credit used as needed. He made the representation knowing that it was false. Mr. Joshi, her trusted friend, told the plaintiff that he was a director of Right Choice, a company which at trial Mr. Joshi admitted was a fictitious and unincorporated company. Thus, the false representation was knowingly made. It was made with the intention that it would be acted upon.
[120] The plaintiff, based on this information, proceeded with the project and entered into a contract with Right Choice, which resulted in damage and loss to her.
[121] The plaintiff, through her lawyer, had requested the construction contract and Mr. Joshi had drawn it up using the fictitious company which she acted upon and signed, thinking that it was a legitimate company. Indeed, Mr. Joshi, her trusted friend, told her he was a director of the company.
[122] In the end, the company was found to be fictitious and non-existent. It failed to undertake the work in a proper and careful manner, failed to adhere to OBC requirements, caused damage to the property and subsequently abandoned the project, causing the plaintiff to incur damages and loss.
[123] The tort of deceit has been established. I am satisfied that the defendants committed the tort of deceit, entitling the plaintiff to damages for the losses sustained.
The Consumer Protection Act
[124] The plaintiff relied, inter alia, on the Consumer Protection Act, S.O. 2002, c. 30, Sched. A (“CPA”). However, as regards the loan transactions, the CPA is not applicable to services governed by the Mortgage Brokers, Lenders and Administrators Act, 2006, S.O. 2006, c. 291. See CPA, s. 2(2)(c), and the Mortgage Brokers, Lenders and Administrators Act, s. 2(1)1.
Limited liability clause
[125] Mr. Joshi relies on the limited liability clause in the construction contract of August 8, 2016, in the event that it is found that he is liable as regards the construction contract.
[126] The limited liability clause reads as follows:
The contractor shall be liable to the extent of maximum coverage for limited liability, as agreed between the parties, for any damages, errors, omissions, or any such occurrences which may arise from the provision of Construction Services to the Client. The maximum coverage for limitation of liability, as agreed between the parties is $5000 Canadian.
[127] I have found the construction contract to be null and void and entered into as a result of fraudulent misrepresentation, and I have set the contract aside. As a result, the limitation of liability clause contained in the construction contract concluded between the plaintiff and the fictitious company, Right Choice, is not valid and cannot be relied upon by the defendants.
Mitigation
[128] It is the position of the defendants that the plaintiff failed to mitigate the damages resulting from their negligence in the construction work.
[129] I am of the view that the defendants left the plaintiff in such a position that she was unable to do further work given the financial circumstances, the mortgages on the properties and the power of sale which had been commenced on the properties by the defendants. The evidence indicates that with respect to the worst deficiencies which caused leakage, she asked a friend from her church to assist her in stopping the leakage. I do not find that she was in a position to mitigate further by continuing with the work to be done on the house due to the financial circumstances in which she was placed because of her dealings with the defendants.
Conclusion
[130] This action involves the final mortgage of $1,260,000, plus interest of 9.99% per annum for a total claim of $1,355,280.33. The final mortgage was entered into on March 10, 2017 between the plaintiff and the defendants, Xpert Credit and Mr. Joshi, after merging two previous mortgages, which Xpert Credit had loaned to the plaintiff and which were secured on 890 Kennedy Rd. and her own property, 167 Merkley Square. This final mortgage was the result of several previous six-month term mortgages which had been rolled over, and variously merged, at certain points, as indicated above.
[131] In 2017, the plaintiff sought the advice of Mr. Joshi as regards selling the house at 890 Kennedy Rd. He urged her not to sell the home, but rather to renovate the home, indicating that it would increase in value and that it would be a “win-win” situation for both of them. He represented to her that he and his companies would undertake all of the work on the home, including lending the money, managing the construction, doing the construction through Right Choice, of which he was a director, and supervising the construction work through Xpert Credit of which he was also a director. She requested a construction contract, which was executed between herself and Right Choice, a company which, as was learned later, was a fictitious and non-existent company. Mr. Joshi signed the contract as director.
[132] Based on all of my findings and the law, as set forth above, I find that the $1,260,000 mortgage with interest of 9.99% per annum for a total of $1,355,280.33 is set aside. The construction contract, upon which the mortgage is based, is null and void, and is set aside.
[133] Due to the negligence, breach of contract and fraudulent misrepresentation of the defendants, they are responsible for payment of all damage or loss sustained by the plaintiff as a result of the defendants’ negligent construction work. All amounts required to complete the work that the defendants should have done under the construction contract, as well as all work required to comply with the OBC and Fire Code, are the responsibility of the defendants, Mr. Joshi, Xpert Credit and Right Choice, jointly and severally. As previously noted, the defendant, Right Choice, is a fictitious company, which is not incorporated, despite being indicated as “Incorporated” on contracts. While there is, therefore, likely no entity to be liable, I have nevertheless made it jointly and severally liable with the other defendants.
[134] Mr. Barrett, who inspected the property and provided a report which was adduced in evidence, estimated on April 20, 2019 that the amount required to properly complete the construction work on 890 Kennedy Rd. would be, at a minimum, $153,000 at the time he conducted his inspection. He further indicated that it could cost more, given that work already undertaken had to be dismantled in order that they could, at each stage of construction, inspect and approve the work done. As previously indicated, damages and loss sustained by the plaintiff are the responsibility of the defendants jointly and severally. As the damages will likely be more than the minimum amount of $153,000, plus HST, as estimated by Mr. Barrett, the defendants are to forthwith pay that amount to the plaintiff. In order to ensure that sufficient funds are available to complete all work, the defendants are to place in a trust account, to be maintained by the plaintiff’s counsel, the additional amount of $250,000. Once all construction work has been completed and approved by the City, the final amount of the construction and remedial work is to be itemized and tallied. The plaintiff’s costs, less the $153,000 plus HST already paid to the plaintiff, will be paid from the amount in trust. Any additional amount owing will be covered by the defendants, jointly and severally.
[135] The plaintiff further seeks damages in the amount of $1,355,280.33, which was the amount claimed by the defendants as outstanding on the mortgage. The plaintiff did not support her claim of $1,355,280.33. There was no breakdown and no supporting documentation. I can only assume that the amount that was claimed simply reflected the amount sought by the defendants on the mortgage. Given no evidence was adduced to support the amount sought by the plaintiff, I will not make an award for that amount.
Costs
[136] I urge the parties to come to an agreement as to the costs incurred in this matter. In the event that they are unable to do so, they may provide their submissions on costs of a maximum of three pages in length within 60 days of this decision.
Carole J. Brown J.
Released: July 29, 2021