COURT FILE NO.: CV-12-462-00
DATE: 2021 06 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THELSEA SIRJU
Rishi Nageshar, for the Plaintiff
Plaintiff
- and -
AMASIS CONSTRUCTION INC. and LOUIS HENRY
No on appearing for the Defendants
Defendants
HEARD: June 2, 2021 via video conference
REASONS FOR JUDGMENT
[1] This matter came before the court as a motion for judgment where the defendants had been noted in default.
[2] I considered the affidavit material filed on behalf of the plaintiff as well as the submissions on behalf of her counsel and concluded that judgment should be granted to her in the terms set out below and for the reasons expressed.
[3] On the evidence adduced, I am satisfied that both defendants were served with the statement of claim. Counsel for the plaintiff candidly acknowledged that a notice of intent to defend was delivered by the defendant Louis Henry in his personal capacity on behalf of the corporate defendant, however he had not been granted leave to represent the corporation.
[4] Counsel also advised that she communicated with the defendant Louis Henry following receipt of the notice of intent to defend advising of the deficiencies in the notice filed, however this deficiency was not corrected by having a lawyer represent the corporation and ultimately the plaintiff’s counsel requested that the local registrar in Milton note the defendants in default on March 3, 2021. On March 9, 2021 the court registrar’s office confirmed to counsel for the plaintiff that the defendants were in fact noted in default on March 4, 2021.
[5] Given that the defendants have been noted in default, they are deemed to have admitted the allegations made against them in the statement of claim. That in and of itself does not necessarily mean that the plaintiff is automatically entitled to judgment and as such that is why this matter came before the court to consider the evidence adduced and submissions from counsel before granting any judgment.
[6] By way of background, the plaintiff’s claim in this action arises from a contract entered into between the plaintiff and the defendants in March 2019 whereby the defendants were to renovate portions of plaintiff’s home. The plaintiff paid deposits to the defendants totaling $91,111.32.
[7] As detailed in the affidavits filed on this motion, ultimately the defendants defaulted, repudiated and breached their contract with the plaintiff as a result of which the plaintiff had to retain a new contractor to complete the work at her home and to rectify material flaws in the work carried out by the defendants.
[8] The defendants provided labour and materials only to a very limited extent, contrary to the terms of the contract with the plaintiff and many areas of the construction were left incomplete including the following: the concrete deck; flooring; kitchen ceiling a; powder room; doors; staircases; insulation throughout the home; interior finishes; relocating gas lines; plumbing; house leveling; installation of exterior windows and other structural work.
[9] In mitigation of her damages, the plaintiff retained a new contractor to complete the work that would have otherwise been the obligation of the defendants including the installation of new kitchen cabinets which the defendants were to have had manufactured and installed.
[10] Having considered the affidavit evidence, and in particular the affidavit evidence of the plaintiff’s daughter Gail Sirju in her affidavit sworn on May 20, 2021, I find as a fact that the plaintiff overpaid the defendants, incurred additional remedial contracting expenses, additional hotel expenses and costs relating to the purchase of ready-made kitchen cabinetry so as to complete the work otherwise to have been done by the defendants.
[11] I find that these additional expenses break down as follows:
(1) overpayment to the defendants – $39,356.56;
(2) costs paid to remedial contractor – $28,532.50;
(3) additional hotel expenses – $401.80;
(4) cost of ready-made cabinetry for kitchen – $10,346.11 for a total of $78,636.97.
[12] As to the personal liability of the defendant Louis Henry, as asserted in paragraphs 60 – 63 of the statement of claim, given the evidence adduced on this motion and the nature of the interaction between the plaintiff and this defendant, I am satisfied that both defendants misappropriated funds paid to them by the plaintiff and have failed to account to the plaintiff in any way with respect to those funds, all of which has resulted in unjust enrichment to both defendants.
[13] Although the plaintiff’s statement of claim sought extra contractual damages from the defendants such as punitive, aggravated and exemplary damages, counsel advised that no claims of this type were being advanced on this motion for judgment
[14] In the result I find that as a result of the defendants breaches of contract, and misappropriation of the plaintiff’s funds the plaintiff is entitled to judgment against both defendants in the sum of $78,636.97, plus pre-and post-judgment interest in accordance with the Courts of Justice Act.
[15] With respect to the plaintiff’s legal costs incurred, having heard submissions from counsel and having considered the bill of costs submitted, I find that the plaintiff shall have party and party costs payable in the sum of $13,200 inclusive of HST plus assessable disbursements in the sum of $490.54, inclusive of taxes, all on a partial indemnity basis.
[16] Judgment shall issue in accordance with these reasons. Given that the defendants have been noted in default approval as to the form and content of the judgment is not required. In the event counsel for the plaintiff requires further direction from the court with respect to interest payable on the judgment amount, a draft judgment and any supporting material may be submitted directly to me for my consideration rather than through the trial office at Milton.
Daley, J.
Released: June 8, 2021
COURT FILE NO.: CV-12-462-00
DATE: 2021 06 08
ONTARIO
SUPERIOR COURT OF JUSTICE
THELSEA SIRJU
Plaintiff
- and -
AMASIS CONSTRUCTION INC. and LOUIS HENRY
Defendants
REASONS FOR JUDGMENT
Daley, J.
Released: June 8, 2021