Elizabeth Breen and John Breen v. The Corporation of the Township of Lake Bays

BRACEBRIDGE COURT FILE NO.: CV-18-30 DATE: 20210122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Elizabeth Breen and John Breen Plaintiffs

– and –

The Corporation of the Township of Lake Bays Defendant

COUNSEL: David Morin and Peter Reinitzer, for the Plaintiffs Stuart Zacharias, for the Defendant

HEARD: October 26, 27, 28, 29 and November 2, 3, 4, and 6, 2020 - via virtual hearing

DECISION FROM TRIAL

SUTHERLAND J.:

Introduction

[1] On March 15, 1999, the plaintiffs, Elizabeth Bates (now Elizabeth Breen) and John Breen, purchased a cottage property located at 1035 Barkers Road, Lake of Bays, Ontario (the Cottage).

[2] Through the years, the plaintiffs conducted various improvements to the Cottage. In 2011-2012, the plaintiffs decided to perform renovations including a significant addition to the kitchen of the Cottage. During the construction process of the addition, the plaintiffs’ designer/architect discovered several structural issues. An engineer was retained. The engineer opined that the Cottage was structurally unsafe and that there were several Building Code violations.

[3] As a result, the plaintiffs commenced an action against the defendant seeking damages in the amount of $580,626.71 for negligent building inspections and breaches of the defendant’s legal duty to enforce the provisions of the Building Code Act[^1] (the Act) and its pertinent corresponding regulation, the 1986 Building Code (the Code)^2.

[4] For reasons that follow, I conclude that:

(i) The defendant owed a duty of care to the plaintiffs.

(ii) The defendant breached that duty of care.

(iii) The defendant is responsible for damages suffered by the plaintiffs.

Brief Factual Background

[5] The plaintiffs are a married couple with two children each from a previous relationship. Elizabeth Breen is a lawyer that works with a firm in downtown Toronto. She has been practicing since 1984 in commercial law: mergers and acquisitions and banking law. John Breen is a financial advisor that works and lives in Saudi Arabia. He spends approximately two thirds of his time in Saudi Arabia and one third of his time in Canada and the U.S. He travels extensively to Europe, Canada and the U.S.

[6] The plaintiffs were considering purchasing a cottage or farm, a property with acreage, in the Muskoka and Huntsville area.

[7] It was January 1999. The plaintiffs were in their vehicle driving. Elizabeth Breen was reading the Globe and Mail while John Breen was driving. Elizabeth Breen noticed an advertisement for the sale of the Cottage. The Cottage was 5000 square feet on 15 acres. They attempted to contact the real estate agent. No success.

[8] They returned to Toronto. With the assistance of a real estate agent friend, they were able to get in contact with the real estate agent selling the Cottage. The listing of the Cottage indicated that it was a 5000 square foot winterized-year-round Cottage on 15.5 acres of superbly private, panoramic lake view on a sandy shore with deep water for boating. The Cottage was located on the second largest lake in Muskoka, Lake of Bays. The Cottage had 6 bedrooms, and 4.5 baths. The listing states that the roof will not rot and that: “In short, no expense was spared to ensure the integrity of the structure. This dwelling will last, providing haven and enjoyment for generations of your family.”

[9] The Cottage was listed for $789,000.

[10] The plaintiffs visited the Cottage at least twice. Elizabeth Breen submitted an offer of $710,000 with a $50,000 deposit. The offer, an Agreement of Purchase and Sale dated February 17, 1999, (the Offer) had a condition for a home inspection. The Offer was accepted on February 22, 1999 by the vendors, George Norton and Helen Norton, under power of sale with a closing date of March 15, 1999 (the Agreement). Schedule A of the Agreement included a representation from the vendors that to the best of their knowledge there were no known structural problems with the Cottage.

[11] The plaintiffs had a home inspection completed. Elizabeth Breen waived the home inspection condition on February 28, 1999. Elizabeth Breen assigned her rights under the Agreement to John on March 12, 1999.

[12] The transaction closed on March 15, 1999. John Breen took ownership of the Cottage. The plaintiffs were able to spend at least one week of March Break 1999 at the Cottage with their family.

[13] Over the years, the plaintiffs made many improvements and repairs to the Cottage. The plaintiffs utilized the services of a landscaper, cleaners, pest control, heating/furnace contractor, and general contractor to remedy issues around the Cottage. In 2011-2012, the plaintiffs decided to undertake renovations to the Cottage which included an addition to the kitchen area. The plaintiffs wanted to increase the space of the kitchen to facilitate family gatherings and hosting of friends. The plaintiffs indicated that they did much hosting of friends, almost every weekend when they were at the Cottage and their family, their parents, children and then later their grandchildren also used the Cottage.

[14] In late 2011/early 2012, the plaintiffs retained the services of a designer, North Muskoka House Ltd., to provide advice and prepare drawings on the renovations and addition.

[15] The plaintiffs, on the advice of North Muskoka, retained the services of David Gillett Design Ltd. (Gillett Design). The plaintiffs retained the services of Gillett Design in January 2012.

[16] On the recommendation of Gillett Design, in the spring/summer of 2012, the plaintiffs retained the services of Thomas J. Stead Construction Ltd. (Stead Construction) to perform repairs at the Cottage and to construct the kitchen addition and a structural engineer, Duke Engineering, to assist in the addition and kitchen expansion.

[17] On May 4, 2012, Elizabeth Breen received an email from David Gillett that outlined a number of concerns. Elizabeth Breen was advised that a separate engineering report would be forthcoming.

[18] Duke Engineering conducted structural site inspections on the Cottage. The site inspections were completed, and a report was sent to Gillett Design dated May 7, 2012 (the Duke Report). Duke Engineering advised that there was serious water penetration into the Cottage envelope. The Duke Report indicates that there was serious and significant floor and deck decay, Building Code deficiencies, along with evidence of structural concerns. In summary, the Duke Report stated:

Constructing an addition to this building would not be permitted by the township Building Department until the outstanding structural and Code deficiencies are addressed. Moreover, given the extent and severity of the structural deficiencies observed, we are of the opinion that the repair costs may exceed the re-construction costs of the building. We would recommend that additional inspection be completed, consisting of removal of the interior finishes as required to verify the structural integrity of numerous loadbearing members in question. Occupancy of the building should be limited until the structural adequacy of the building can be verified.

[19] Consequently, the plaintiffs became concerned about the safety of occupying the Cottage. The plaintiffs’ limited use of the Cottage and retained the services of further experts. The plaintiffs also commenced this action on February 18, 2014.

[20] The plaintiffs stopped occupying the Cottage in 2013. They removed the contents of the Cottage and turned off the heat and drained the water from the plumbing in 2014.

[21] The plaintiffs also commenced an action against the title insurance company on the purchase of the Cottage, FCT Insurance Company Ltd., seeking insurance coverage and damages.[^3]

The Cottage

Building Permit and Inspections

[22] On October 30, 1989, a building permit was issued by the Corporation for the Township of Lake of Bays (the Township) to Tim Norton for the construction of a single-family dwelling, the Cottage, with construction drawings to be attached (the Permit). No construction drawings were produced at this trial.

[23] Tim Norton was an architect. He was the son of George and Helen Norton.

[24] Pursuant to the permit, Tim Norton arranged for the construction of the Cottage between 1989 and 1991.

[25] On August 17, 1990, Don Huggett, the Chief Building Official of the Township department (now deceased), conducted a foundation and drainage inspection. In that inspection, no deficiencies were noted. On the report was written: “balance of building ready to backfill”.

[26] On June 3, 1991, Don Huggett conducted an inspection of the upper level’s washroom plumbing and insulation. At that inspection, no deficiencies were noted with respect to the construction. On the June 3, 1991 inspection report was written: “Upper levels-insulation & vapour barrier OK” and “Plumbing rough in OK; Upper level may be drywalled”.

[27] On June 12, 1991, Don Huggett conducted an inspection of the lower level insulation and vapour barriers. At that inspection, no deficiencies were noted. In that inspection report was written: “lower level walls OK ready for drywall”.

[28] It appears that no inspection was conducted on the framing even though, it appears, one may have been requested for the June 12, 1991 inspection given the entry on “Inspection Required” that was crossed out that indicated: “Framing & Rough in Plumbing.”

[29] On January 28, 1992, the Township wrote a letter to Tim Norton advising that their records indicated that he had not requested any inspections for the project for over six months.

[30] In a letter dated January 28, 1992, the Township advised Tim Norton that if he wished to extend the permit, he should request it in writing so that the Township could issue a new permit and correct the permit fee. The Township further advised Tim that if they did not hear from Tim Norton by February 14, 1992, they would assume the project was complete and close their files on the construction project. The address to which the letter was sent was redacted.

[31] In a letter dated June 15, 1993, addressed to Tim Norton at a premises in Weston, Ontario, the Township advised that in accordance with the Ontario Building Code Act, section 6(4)(c), having had no request for inspections for more than one year, it was assumed that his building project was complete, and therefore subject to any re-assessed value applicable to the project. Any future construction activity on the Cottage would require new permits.

[32] No evidence was presented to indicate that the Township inspected the Cottage after June 12, 1991.

The Purchase and Closing

[33] The plaintiffs retained Smith Lyons to provide legal advice and to close their purchase of the Cottage. At the time of purchase and closing, Elizabeth Breen was a partner at Smith Lyons.

[34] The plaintiffs were aware of damage to the Cottage when they visited the Cottage and before closing. They were aware of damage in the garage due to water penetration. They were advised that a pipe burst due to turning off the heat in that area of the Cottage. It was the plaintiffs’ understanding that the Cottage was owned and built by the son of the vendors. They were also aware that the vendors were selling the property by way of power of sale in that a mortgage held by National Bank of Canada (NBC) was in default and that NBC assigned their rights to the vendors.

[35] The plaintiffs also obtained a home inspection report. In that report, issues were noted which included:

(a) Minor problems of small cracks in foundation, rot/decay subfloor, joists beam, sill plate and that conditions were conductive to wood rot/decay. It was suggested that the decay and rot was due to poor drainage at back of home and grading to be inspected to ensure water flow away from the home.

(b) Electrical panel should be checked.

(c) Heat pump should be checked to ensure no air locks are in underground pipes.

(d) Repairs of garage ceiling to ensure against CO2 poisoning.

(e) Stair railing uneven-need to be secure.

(f) Replace weather-strip and repair cracked window.

(g) Fireplace smoky and chimney cap.

(h) Add downspouts, clean and secure.

[36] The plaintiffs were confident that with the purchase price, which was significantly less than the listing purchase price, they would be able to rectify the issues and were not concerned with the issues outlined in the home inspection report.

[37] In addition, the plaintiffs were advised by their real estate lawyer, by memorandums dated March 3 and 4, 1999, that:

(a) A notice was sent to the owner, Tim Norton, in 1992, indicating that a final inspection of the Cottage was outstanding.

(b) In 1996, the building department lost its records in a fire and that due to the fire, no one was aware if the Cottage passed its final inspection.

(c) The building department does not appear to be concerned whether there was a final inspection.

(d) The real estate lawyer was “inclined to leave things as is and not request that the building department conduct a final inspection of the Cottage prior to closing. If you disagree with my suggestion, please call me.”

(e) There was a final inspection fee of $150.

[38] No final inspection was requested or performed.

Experts

[39] Four experts were presented at the trial. The experts were David Duke of Duke Engineering, Ron Koerth of Giffin Koerth Inc. and later of Envista Forensics, Ron Dahl of First General Muskoka and Alison G. Orr of Orr Brown Consulting Engineers Ltd. All four experts were on consent qualified as experts.

David Duke

[40] David Duke was presented as a participant expert. He is a structural engineer. He is the principal of Duke Engineering. He started his career as a structural engineer in 1997 with the Ministry of Transportation (MTO). At the MTO, he worked on bridges, malls and buildings. He moved from the MTO to consulting and continued to work on bridges, buildings and on cottages in the Muskoka area. He has inspected and worked on hundreds if not thousands of cottages in the Muskoka area. He completed the Duke Report after two visits to the Cottage in March and April 2012. The Duke Report was a structural site inspection to review the Cottage and advise if the Cottage was suitable for renovations and the construction of an addition. After April 2012, David Duke visited the Cottage in September 2018 and the fall of 2019.

Ron Koerth

[41] Ron Koerth is presently Senior Vice-President for Envista Forensics’ Canadian and UK/European Forensic Consulting divisions. He has 30 years of combined experience as a civil and forensic engineer. He received his Master’s Degree in business administration in 1993 from York University, a Bachelor of Science degree in applied science from the University of Waterloo in 1988, and is a professional engineer. He worked in residential construction from 1987 to 1995 and as a forensic engineer starting with Walter’s Engineering in 1996. In December 2001, he started Giffin-Koerth Forensic Engineering with his partner and then commenced his present role with Envista Forensics in November 2017. Ron Koerth has been qualified as an expert witness 23 times in the Superior Court of Ontario. He has written numerous articles on forensic engineering, property loss and construction claims. He has presented at numerous speaking engagements on topics dealing with construction and forensic engineering.

[42] On consent, Mr. Koerth’ s scope of expertise is in forensic engineering, building sciences, civil engineering, structural failure analysis, Building Code assessments of Ontario, concerning Part 4 and 9, municipal enforcement of the Ontario Building Code and evidence on the standard of care expected from municipal building departments in the Province of Ontario.

[43] Mr. Koerth provided expert reports dated February 27, 2014, May 15, 2015, January 14, 2019, February 18, 2020 and April 16, 2020.

Ron Dahl

[44] Ron Dahl has been involved in all aspects of the insurance and construction industries for decades. He was a Senior Adjuster/Branch Manager for Crawford Adjusters Canada from 1997-2005, providing adjusting services for all insurance lines as well as fiscal management of claims offices. He started First General Services Muskoka in 2005 and as the owner/operator has worked in all areas of services of the business. First General Services Muskoka provides emergency services for losses due to fire, wind, mould and provides estimates for restoration from damage due to fire, water, wind, mould, as well as project manager services for restoration and new construction work. He has worked in the Huntsville and Muskoka Lakes area. He has experience in seasonal dwellings over the years. Mr. Dahl has numerous certifications concerning restoration including applied microbial, water/sewage, fire and smoke restoration.

[45] On consent, Mr. Dahl’s scope of expertise is in the area of costing and estimating, and dwelling repairs in the Province of Ontario following major losses.

[46] Mr. Dahl provided estimates for repairs on the Cottage dated May 15, 2018, September 6, 2019 and October 13, 2020.

Alison G. Orr

[47] Alison Orr has been a professional engineer since 1996. She received her Bachelor of Engineering (Civil Engineering) from McMaster University in 1994. She worked as a building inspector for the City of Hamilton from June 1994 to April 1997. She then worked at the City of Hamilton as a building engineer from April 1997 to April 1999. She became a consultant building engineer in April 1999 with Southward Consultants Limited, conducting site investigations and reviews of Building Code requirements and municipal by-laws, with respect to municipal involvement and practices along with investigating and evaluating bodily accidents and buildings damaged by fire, impact and vibration relating to and reviewing Building Codes and other applicable legislation. She left Southward Consultants in January 2011 and started Orr Brown Consulting Engineers Ltd. in February 2011. She continued with the same work as she did at Southward, developing a specialty in Building Code matters and standard of care of municipal building departments. She was appointed to the Building Code Commission as a member in 2006 and as Vice-Chair in 2018. She was appointed to the Building Safety Technical Advisory Panel in response to the recommendations in the Elliot Lake Commission of Inquiry in 2015. She has been qualified as an expert in the Ontario Superior Court of Justice and provided expert testimony on Building Code matters and matters regarding standard of care of municipal building departments. She also presented at speaking engagements on issues concerning risk and reducing liability for municipal building departments and building department claims.

[48] On consent, Alison Orr’s scope of expertise is in the field of building engineering, including the Ontario Building Code and standard of care applicable to a municipal building department.

[49] Ms. Orr provided reports dated December 22, 2017, October 7, 2019 and April 13, 2020.

Role of an Expert Witness

[50] Expert opinion evidence is generally inadmissible. Such evidence is admissible if it meets the requirements of admissibility and it passes scrutiny at the gate keeper stage. In this case, there is no dispute that the expert evidence provided meets the requirements of admissibility.

[51] The role of an expert witness is to provide the court with impartial objective evidence on issues in the action that the court would not normally have knowledge of. The impartiality is that the evidence given and opined should not unfairly favour one party’s position over another. The expert witness owes a duty to the court to provide fair, objective, nonpartisan answers within the scope of the witness’ expertise. The expert should never assume the role of an advocate, for the expert’s duty to the court prevails over any duty owed to the litigants.[^4]

Issues

[52] The issues arsing from the evidence at the trial are:

(a) Does the Township owe a duty of care to the plaintiffs?

(b) If the Township owes a duty of care, what is the standard of care owed?

(c) Has the Township breached the duty of care owed?

(d) If the Township has breached the duty of care, did such breach(es) cause the Plaintiff to suffer damages for which the Township is responsible?

(e) If the plaintiffs have suffered damages that the Township is responsible for, what is the amount of those damages?

(f) Should the amount of damages be reduced?

A. Does the Township owe a duty of care to the plaintiffs?

[53] In deciding whether a duty of care is owed by the Township in the circumstances of this case, the questions to be examined have been established in Anns v. London Borough of Merton[^5], as adopted by the Supreme Court of Canada in Nielsen v. Kamloops (City)[^6] and reaffirmed by the Supreme Court of Canada in Ingles v. Tutkaluk[^7].

[54] The two questions to be answered are[^8]:

1. Is there a sufficiently close relationship between the parties so that in the reasonable contemplation of the Township, carelessness on part of the Township might cause damages to the plaintiffs? If so,

2. Are there any considerations which ought to negate or limit (a) the scope of the duty and (b) the class of persons to whom a duty is owed, or (c) the damages to which a breach of it may give rise?

[55] At the first stage, proximity is best understood as: was the harm that occurred, the reasonably foreseeable consequence of the Township’s act?

[56] In a case concerning a duty of care arising from a building inspection, the Supreme Court of Canada in Ingles did state that the first question is a relatively low threshold. The Court in Ingles indicated that the first question is satisfied where “a relationship of proximity existed between the parties such that it was reasonably foreseeable that the carelessness on the part of the public actor would result in injury to the other party.”[^9]

[57] Moreover, in negligence, the first questions are the type of relationship in which a “duty of care to guard foreseeable negligence may be imposed.”[^10]

[58] The relationship between the plaintiffs and the Township was that of a rate payer who subsequently purchased the Cottage in which the Township granted a building permit and conducted building inspections.

[59] The Township has conceded that the type of relationship between it and the plaintiffs are sufficiently close that it was reasonably foreseeable that carelessness on its part might cause damages. I agree with this concession of the Township that its relationship between it and the plaintiffs is the type of relationship courts have determined meet the criteria of a prima facie duty of care.[^11]

[60] Accordingly, I find that there exists a sufficiently close relationship between the plaintiffs and the Township that a prima facie duty of care exists between the Township and the plaintiffs.

[61] For the second question, the court must examine the legislation which governs the Township to ascertain in the circumstances that a private duty should be imposed.[^12]

[62] I will turn to the second question.

Has the scope or class of person to which a prima facie duty of care is owed been negative or limited?

[63] Having found that there is a prima facie duty of care, the next step is to determine if there is a policy reason to limit the prima facie duty of care.

[64] The Code imposes a duty on all municipalities in Ontario, which includes the Township, to ensure all construction of new buildings as defined therein, comply with the standards of construction as described by the Act and Code.

[65] In Ingles, the Supreme Court of Canada determined that: “(t)he legislative scheme is designed to ensure that uniform standards of construction safety are imposed and enforced by municipalities.”[^13]

[66] In Ingles, the Supreme Court of Canada reviewed in essence the 1990 version of the Act which is the same statutory scheme that is the subject matter of this action.[^14] The applicable provisions in the Act for this matter are sections 3(1) and (2), 5(1), 6(1)(a)(c), (3), (4), and (5), 8(1)(2)(3)(5) and (6), 9(1) and (2), 10(1)(2)(3) and (4), and 11(1)(a)(b)(c) and (d). These sections in the Act have been reproduced as an appendix to these reasons.

[67] After review of the pertinent provisions in Ingles, the Court states:

The purpose of the building inspection scheme is clear from the provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects. The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the Act. Therefore, municipalities owe a duty of care to all who it is reasonable to conclude might be injured by the negligent exercise of their inspection powers.

[68] Moreover, the Township has the authority to grant or reject the application of a building permit. Section 6(1) indicates that the chief official shall issue a building permit, “except where,

(a) the proposed building or the proposed construction or demolition will not comply with this Act or the Building Code or will contravene any other applicable law; …

(c) the application therefore is incomplete or any fees due are unpaid.”

[69] Section 6(4) states: “Subject to section 15, the chief official may revoke a permit,

(a) where it was issued on mistake or false information;

(c) where the construction or demolition of the building is, in the opinion of the chief official, substantially suspended or discontinued for a period of more than one year.”

[70] The policy of the legislative scheme applies not only to the Township’s inspection powers, but also to the Township’s powers to grant or reject a Building Permit Application and its powers to revoke a building permit that has been granted. The Supreme Court of Canada not only stated so in Ingles but also stated in Rothfield v. Manolakos:

Third parties, such as neighbors and subsequent purchasers or occupiers of a building, obviously have no say in the actual construction of a building, that proves defective. It is therefore reasonable that they should be entitled to rely on the municipality to show reasonable care in inspecting the progress of the construction.[^15]

[71] The purpose of the construction scheme - the granting of the building permit and subsequent inspection of construction is the same: to protect the health and safety of the public. The legislative scheme grants powers to the Township to not only inspect the construction but also to grant or reject an application for a building permit or later revoke said building permit, if the circumstances warrant.

[72] The plaintiffs are subsequent owners of a building that the Township granted a building permit for construction and inspected the construction as the construction was ongoing. It is reasonable to conclude that the Township would owe a duty of care to the plaintiffs who might be injured by the Township’s negligent exercise of their authority not only to inspect the progress of the construction but also in the process of granting a building permit, not to subsequently revoke said building permit which is the subject matter of the construction, pursuant to the provisions of the Act and requisite regulations.

[73] There is nothing in the Act that limits or negates the duty or damages to which a breach may give rise. The duty of care is limited to those “who might be injured by the negligent exercise” of the powers of the municipality, as described.

[74] I conclude, therefore, that the Township owes a duty of care to the plaintiffs to not negligently exercise its power to grant a building permit and in the inspection of the construction of the building which is the subject matter of the building permit pursuant to the Act and requisite regulations.

B. What is the standard of care owed?

[75] The standard of care of the Township is not to the level of that as being an insurer.[^16] It is not perfection. It is not for any and every deficiency or negligent action in the construction of a building. The Township in its role under the Act, is not the constructor, the engineer or architect. The Township’s standard of care is founded on that as authorized and mandated by the Act and requisite regulations.

[76] The Township owes a duty of care to all who might be injured by its negligence as “a traditional negligence analysis will be applied.”[^17] The standard of care owed, as described in Ingles in the inspection of buildings, is:

…To avoid liability, the government agency must exercise the standard of care in its inspection that would be expected of an ordinary, reasonable and prudent person in the same circumstances. Recently, in Ryan v. Victoria, supra, at para. 28, Major J. reaffirmed that the measure of what is reasonable in the circumstances will depend on a variety of factors, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. The same standard of care applies to a municipality which conducts an inspection of a construction project. While the municipality inspector will not be expected to discover every latent defect in a project, or every derogation from the building code standards, it will be liable for those defects that it could reasonably be expected to have detected and to have ordered remedied; see, for example (citation omitted).^18

[77] The evidence indicated that there are two separate stages that involve the Township in the construction of a building. The first stage is the granting or rejection of a Building Permit Application: The Application for Building Permit stage. The second stage is the inspection of the construction as the construction is proceeding based on the building permit granted, the Act and its requisite regulations, the Building Code: The Inspections of Construction stage.

[78] Concerning the first stage, The Application of Building Permit stage, the standard of care of a municipal building department (the building department) official/inspector is that of an ordinary, reasonable prudent building department official/inspector receiving and reviewing the application for a building permit. The building department would ascertain if the application is complete. Is there enough information to determine the scope and details of the construction? Have plans and specifications been submitted? The more complex the construction, the more detailed the information contained in the application is required, which could include plans and specifications from professionals, such as engineers and/or architects, whichever is applicable.[^19]

[79] If the municipal building department determines that the application is complete, does the information contained in the application permit the municipal inspector to perform a review to determine that the application complies with the Act and Code? Are more detailed plans or specifications required? Do the required specifications and plans need to be completed by a professional such as an engineer or architect? All this is based on the reality that during inspection of the construction, the inspector will be relying on the building permit issued to determine that the construction adheres to what was approved for construction. If the building department determines that more information is required or the application is not complete, the application can be denied or more information demanded. Any changes or additional information required to satisfy the building department should be indicated in writing for the applicant to have knowledge of the changes or requirements to comply with section 6(3) of the Act.

[80] Once the building permit has been granted, the second stage is the inspection of construction. With the information contained in the building permit, the requirements stated in the Act and Code, the building inspector is to inspect the construction at various phases of construction.

[81] The standard of care for inspection is that of an ordinary, reasonable and prudent municipal inspector in the circumstances. The circumstances would include the information of the construction that is available to the building inspector, along with the requirements set out in the Act and Code. The circumstances may also include if the building to be inspected is a single-family dwelling, a commercial building, or a high-rise building. Whether the building is a single-family dwelling or multitude of single-family dwellings, as may exist in a subdivision development, may be a factor that will affect the standard of care.

[82] The Act, section 5(2), permits a council of a municipality to pass bylaws for the enforcement of the Act in their jurisdiction.

[83] Council for the Township passed By-Law 80/19 dated March 11, 1980 (the By-Law), that concerns the enforcement of the Act and Code in its jurisdiction. The By-Law indicates:

3. No person shall commence the erection of any new building, structure or addition to any existing building, unless and until he shall first have submitted the following:

(a) Plans and specification of proposed building or addition.

(b) A sketch showing the dimension of the lot and the location of the building on the lot and delineating the distances of the following:

(1) Yard set back (Road);

(2) Yard set back (Water: High Water mark);

(3) Exterior side yard width (if applicable);

(4) Interior side yard widths;

(5) Rear yard depth;

(6) The location of any other building on the lot;

(7) The use and purpose of all buildings;

(c) and shall first obtain a building permit to proceed with the erection or addition.

11. The applicant for a building permit shall give written notice to the chief building official:

(a) at least 48 hours beforehand of the intention to start any excavation or foundation work.

(b) at least 24 hours beforehand of the intention to start a foundation wall below ground level, and before any back filling of the excavation is to be carried out.

(c) at least 24 hours before being ready to start applying interior finishes.

[84] Section 2.4.5.1(1) of the Code, in contrast, indicates that notices for inspections during construction include:

(a) Commencement of the construction of the building;

(b) Readiness to construct the footings;

(c) Substantial completion of the footings and foundations;

(d) Where the building is within the scope of Part 9, of the substantial completion of structural framing, insulation and vapour barriers, and ductwork and piping, or roughing-in of heating and air conditioning systems…;

(e) Commencement of the construction of masonry fireplaces and chimneys…;

(f) Substantial completion of all required fire separations and closures;

(g) Substantial completion of interior finishes and HVAC;

(h) Substantial completion of exterior cladding, fire access, routes, and site grading; and

(i) Completion and availability of drawings of the building, as constructed.

[85] Section 5(2)(e) of the Act indicates that council of a municipality may pass by-laws applicable in the area in which the municipality has jurisdiction for enforcement of the Act, prescribing time within which notices required by the regulations must be given to the chief official or an inspector.

[86] Section 2.4.5.1(1) of the Code indicates “notices required by the regulations.” Once the Township decides to enact a By-Law per section 5(2) of the Act, the Township, in my view, was required to comply with the Act to describe in the By-Law the time prescribed when the recipient of a building permit is to provide notice, which are the nine phases of construction, as described by the regulations enacted per the Code. The By-Law fails to do so. The Township, in not mandating notice for inspection at the phases of construction as contained in the Code, does so at its own peril. This failure, in practicable terms, may not be material. But in cases where there are allegations of breach of duty of care in negligent inspections, this failure may be significant in determining if the municipality fell below the standard of care required.

C. Did the Township breach its duty of care to the plaintiffs?

Stage one: Application for a Building Permit

[87] Tim submitted his Application for the Building Permit on October 30, 1989 (the Permit). The Permit was granted the same day. The Application for Building Permit form states that: “A set of Plans of the proposed building must be attached.” In the application there is a section entitled “Specifications” that requires completion. This section was not fully completed by Tim Norton. Beam size, post spacing and exterior cladding was not completed. The application indicates a three-story structure with an estimated completion date of January 30, 1990.

[88] No plans or specifications detailing the construction of the building described in the Permit were filed at this trial.

[89] Stephen Watson, the current Chief Building Official (CBO) for the Township, testified that he did not locate any set of Plans in support of the building permit. He stated that after 1990, there was a fire that destroyed documents and records of the Township. But notwithstanding the fire, he testified that he examined other building permit files around the same time of the granting of the Permit. He discovered that it appeared to be the practice in the 1980s that a set of plans were not required to be submitted with the Building Permit Application. Building permits were granted routinely without a set of plans. He did concede that the Application for Building Permit form does require a set of plans, as does the By- Law.

[90] Ms. Orr conceded that if no plans were submitted with the Application for a Building Permit or no plans or specifications were reviewed, a building permit should not have been issued. Ms. Orr concurred with counsel for the plaintiff that the Township could not ascertain if the intended construction complies with the Act or Code if no plans were submitted with the application for building permit.

[91] The Township granted the Permit with no plans or specifications contrary to the By-Law and granted the said Permit in less than one day. I conclude that the Township building department did not review the Application for Permit in any meaningful manner, to ascertain whether the information provided allowed it to conclude that the Application complied with the Act or Code. The information in the Application is so sparse, I fail to understand how the Township could determine the scope and complexity of the three-storey building that was intended to be constructed. The Township had the authority to demand a set of Plans, more information on the scope and complexity of the construction before granting a building permit. The Township could have rejected the Application. It did neither.

[92] At minimum, the Township was entrusted to take reasonable and prudent steps to review the Application for Building Permit to enforce the Act, Code and the By-Law for the health and safety of the public, which includes subsequent owners of the Cottage. The Township had no plans or specifications to do so. The granting of the Permit the same day indicates that it did no review, which corresponds to there being no plans or specifications to review.

[93] I conclude that at this first stage, the conduct of the Township fell well below the required standard of care.

Stage two - Inspection of Construction of the Cottage

[94] The Township conducted inspections on the Cottage on three occasions: August 17, 1990, June 3, 1991 and June 12, 1991. Several months past the estimated date of completion of construction.

[95] Mr. Koerth testified that there were seven major deficiencies with the Cottage that should have been discovered by a reasonable and prudent municipal building inspector. These deficiencies are:

a. improper placement of the skylights in the kitchen;

b. missing ground cover in the crawl space;

c. insufficient stair height clearance beneath the interior third floor stairs;

d. insulation gaps;

e. missing roof ventilation;

f. Structural Issues including:

i. Overloading of a third floor Glulam beam;

ii. PSL 1, a beam supporting the loft floor, was overloaded;

iii. The doubled wood I-joist on which the north end of PSL 1 rested did not provide adequate support;

iv. Inadequately sized window lintel on the west wall;

v. Trimmer rafters each side of the dormers required doubling;

vi. Improper connection of a double I-Joist rafter; and inadequate blocking

to carry the beam and post loads to the foundation.

[96] I intend to deal with each claimed deficiency separately. However, before I do so, I wish to deal with the general nature of the construction of the Cottage and the inspections of the Township.

[97] There is no dispute in the evidence at trial that the construction of the Cottage would have been complex and would have necessitated a set of plans and specifications. The roof was constructed with numerous gables, peaks and valleys and 12 dormers, indicating complex construction. The primary interior construction was a combination of engineered components, including Glulams and laminated veneer lumber beams, build up posts and engineered wood I-joist systems. The interior area of the Cottage was a complex space with vaulted ceilings, open hallways and landings. The support beams and the load required on those beams would require plans and specifications on the type of beam, the load that the beams could safely hold from calculations, and the safe placement and attachment/connections of said beams. The difficulty the court has is that there are no records at all from the Township that a set of plans and specification existed or were utilized by the building department during inspections. There is no note. No letter. No stamped and filed drawings or specifications that may have existed after the granting of the Permit. There is no indication on the Application for Building Permit that plans and specifications were filed. It is not for the court to speculate that a set of plans and specifications must have existed. This may very well be true. However, the question is whether the building department at any stage of the construction process utilized a set of plans and specifications to exercise their authority and their duty of care. Again, there is no evidence that it did.

[98] Notwithstanding, the Township conducted three inspections at three different phases of construction after receiving notification.[^20]

[99] I will turn to the deficiency allegations of the plaintiffs.

Skylights in the Kitchen

[100] Both Mr. Koerth and Ms. Orr agreed that there is water penetration from the area of the skylights in the kitchen area and the door leading from the kitchen to the outdoor patio.

[101] Mr. Koerth opined that a prudent municipal inspector would have noticed that the construction of the skylight in the location at the base of a roof valley was contrary to the Code, namely clause 9.27.1.1 dealing with roof protection and the shed of water effectively. He surmised that the flow of water from the roof towards the skylights was just a disaster waiting to happen. Skylights are prone to leak. Adding further water against a skylight would inevitably result in water penetration. A prudent inspector would have known this and should have observed these factors when viewing the roof and skylight area. He also indicated that the first place this deficiency would have been noticed would be at the review of plans and specification at the application for building permit stage. He also conceded that probably only 50% of inspectors would have caught this issue at the inspection stage.

[102] Ms. Orr testified that there is no specific requirement in the Code that deals with the placement of skylights and water penetration. She indicated that it would be better not to have the water floor from the roof meet at skylights. She agreed that skylights are prone to leakage. She also opined that an inspector on the site would not necessarily have noticed that the location of the skylights would be a concern. However, I note that Ms. Orr made no comment that an inspector should have or may have noticed the issue at the Application for a Building Permit stage, and the review of the plans. She made no comment that at that stage a request for change of the location or removal of skylights would have been required.

[103] In addition, neither Mr. Koerth or Ms. Orr opined if the plans were prepared by an architect or engineer with the skylights at the location constructed that a building inspector would have objected.

[104] I accept Mr. Koerth and Ms. Orr’ s statement that the location of the skylight is not prudent. But on the evidence provided, I cannot conclude on the balance of probabilities that a prudent building inspector in these circumstances would have objected to the location of the skylights at the Application for Building Permit stage or during inspection. Mr. Koerth did opine that only 50% of inspectors may have noticed the issue of the skylights and objected to the constructions at that location.

[105] I do not find that the Township’s inspection concerning the skylight fell below the standard of care owed.

The Crawl Space

[106] Mr. Duke in his evidence and report noted floor joists completely decayed below the living room door to exterior covered deck. He also observed several locations where the foundation has cracked in the crawl space. He observed lack of vapour barrier and no insulation on exterior block walls. There was dark staining on the block wall evidencing moisture.

[107] Mr. Koerth found that the crawl space appeared to be heated. The crawl space had an uncovered earth/rock bottom that was not protected or sealed with a vapour barrier. These missing components contravened section 9.18.6.1 of the Code. It lacked a required sealed vapour barrier. Mr. Koerth opined that this Code violation was “likely responsible for the deterioration of the wood floor structure”[^21] in permitting moisture to enter the crawl space.

[108] Ms. Orr agreed that ground cover was required per the Code and that ground cover was not visible in the crawl space. She indicated that she would have expected that a prudent municipal inspector would have noticed this deficiency on final inspection. There was no final inspection conducted for there was no final inspection requested nor required. There is no dispute in fact that there is no evidence that a final inspection was requested or conducted.

[109] Both Ms. Orr, Mr. Koerth and Mr. Duke agreed that there was no access to the crawl space. Mr. Duke had to cut out portions of the floor to gain access. Open access to the crawl space, all agree, is required under the Code. The lack of open access would impede the ability of the plaintiff to inspect the crawl space on a regular basis.

[110] It appears to the court that ground cover and a vapour barrier in the crawl space was required and it was not done. Further, it appears open access to the crawl space is also required and that was not done. The Township inspected the Cottage. In doing so, it took on the obligation to do so as a reasonable and prudent inspector. There is no indication in the evidence that the Township inspected or observed the necessity of a vapor barrier and ground covering, or that open access was observed as being absent in the application for a permit stage or in the inspection of construction stage. Accordingly, I find that the Township did not meet the standard of care in inspecting the adequacy of the crawl space protection, nor the need of open access to the crawl space.

Interior Third Floor Stairs

[111] There was a disagreement that the mid-level landing of the interior stairs from the second to the third-floor levels did not comply with the headroom clearance. Section 9.8.3.6. of the Code mandates clearance of 1.9 meters (or 77 inches). The measured clearance is 1.83 meters (or 72 inches).

[112] Ms. Orr stated that the measurement of the clearance would take place on final inspection when the stairs are fully and finally installed with the drywall. It would be difficult for a prudent inspector to know that the headroom clearance is off by about .12 metres or 5 inches. She also stated that this deficiency did not appear to be an issue with the plaintiffs either before or after they purchased the Cottage. The implication is that even though not in compliance, it is not a significant issue that requires rectification.

[113] I do not accept Ms. Orr’s statements. The headroom is not in compliance. If the plaintiffs intend to sell the Cottage, I suspect, though no evidence was provided, that a prospective buyer could mandate compliance or at least, the plaintiffs would have to disclose because they are now aware of the deficiency. It appears to me that this deficiency requires rectification. It appears to the court that in order for the building inspector to inspect the upper level stairs, it would have had to be constructed to access the third floor. There was no evidence that indicated whether rough in stairs would have been constructed or framed in that area, and it would not have been possible for the building inspector to have inspected the height clearance at this time. The evidence indicates that no inspection of the stairs was carried out at all.

[114] At this point, I do wish to comment on the opinion of Ms. Orr concerning final inspection. It is not disputed that at the time of construction and inspection that there was not an explicit statutory requirement that the municipality shall inspect, and only needed to do so if notification is given. If no notification is given, then the Township is not required to inspect.[^22] That, in effect, was a “gap” in the legislation.

[115] Generally, I do not accept this contention. The purpose of the Act is clear, as stated by the Supreme Court of Canada and various other judicial decisions.[^23] The purpose is: “to protect the health and safety of the public by enforcing safety standards for all construction projects.” It makes no logical sense that the legislation has mandated such a scheme for the review and inspection of construction in the province, but the inspection need not be conducted if no one requests such an inspection. Such an argument leaves the health and safety of the public in jeopardy. Any purchaser or subsequent purchaser would be purchasing and occupying a building in the province at their own peril. Practically then, any purchaser or subsequent purchaser may only have a proper final inspection conducted by doing an invasion inspection, that is removing of drywall, flooring, ceiling and finishes. The cost for such an inspection would be significant and prohibitive. It makes abundantly more sense for the municipal building department to inspect as construction is proceeding. Accordingly, I am of the view that once a building permit is granted, the municipality has an obligation to inspect the building to comply with the Act and the requisite Building Code. Anything less would make the whole building permit and inspection process meaningless.

[116] In this situation, there is no evidence that a final inspection was conducted. There is no evidence that one was requested. Given that the Township did not comply with the By- Law that required notice requests in writing, it is almost impossible to determine if a final inspection was ever requested. Having said this, I am of the view that once the municipal building department grants a building permit, it has an obligation to take the appropriate steps to confirm that the construction complies with the Act and the Code, which may mean to make site visits even if a request has not been given or exercise its authority under the Act to revoke or suspend the building permit. This obligation is specifically pertinent if the municipality has not received a request for inspection on the construction of a building for an extended period of time.

[117] Thus, it is my view that the Township did not meet its standard of care in failing to require the headroom clearance to be remedied to comply with the Code.

Insulation Gaps

[118] Mr. Koerth was of the view that there are numerous gaps and holes in the polystyrene cathedral ceiling insulation. His opinion was that good construction practice as well as sections 9.26.4.1 and 9.26.4.2 of the Code mandates that the insulation shall be installed that is reasonably uniform over the entire face of the insulated area and that the insulation applied is to be the full width and length of the space. He opined that the insulation installed fails to meet the Code and good building practices, and all interior wall finishes on exterior walls should be removed and expanding foam sealant be applied to all visible gaps. Mr. Koerth advises that given that insulation, vapour barriers and other such elements were provided, they must comply with the Code, as stated in section 9.37.2.3.

[119] Ms. Orr does not dispute that there are areas where there are gaps, but indicates that this is a workmanship issue and in her view “ did not appear to be significant problems.”[^24] She was of the opinion that the removal of walls is not required, and that a non-destructive review of the Cottage using thermographic imaging could be carried out to identify problem areas, if the court ascertains that there is a breach of the standard, which she does not believe there is.

[120] There is no dispute that there are gaps. The inspection reports put forth by the Township on insulation is neither informative or of any assistance. The two inspections dated June 3 and 12, 1991, indicate that the insulation and vapour barrier for upstairs and downstairs is “ok” and ready for drywall. Clearly, the insulation and drywall were not “ok” in that it did not comply with the Code. I do not accept that it may not comply, but it is not significant. I cannot conclude that failing to apply insulation and vapour barrier per the Code is not significant. The court must accept that the drafters of the Code, specialized in the area of construction, are better able to determine what is or is not significant. If the Code mandates a certain way of construction and the construction does not adhere to that mandate, as far as I am concerned, subject to compelling evidence otherwise, failure to comply is enough. I was not provided with any compelling evidence that the failure to comply was not significant and had no real effect on the integrity of the construction or on the integrity of the Cottage.

[121] Accordingly, I find that the Township failed to meet the standard of care in ascertaining whether the insulation and vapour barrier for the lower and upper levels complied with the Act or the Code.

Roof Ventilation

[122] Mr. Koerth observed that there were no roof vents present for roof ventilation. He noted that section 9.19.1.1.(1) of the Code mandates with two exceptions, every roof space or attic above an insulated ceiling shall be ventilated with openings to the exterior by an unobstructed vent area. The exceptions do not apply in these circumstances. There are no roof vents/openings to the exterior. Roof vents are necessary for air circulation in the attic.

[123] Ms. Orr does not dispute that roof ventilation is required and there are no roof vents installed. She contends that this would have been discovered at the final inspection but there was no final inspection. For reasons already stated, I do not accept this contention.

[124] The Township did not meet its standard of care concerning the lack of roof vents.

Structural Issues

[125] Mr. Duke and Mr. Koerth each independently observed significant structural issues with the construction of the Cottage.

[126] Mr. Duke testified that on his inspections of the Cottage, he observed structural integrity issues. He observed floor joists that were completely decayed, compression failure of wood columns/blocking, overloaded floor joists and structural lintels, cracking in the ceiling, walls, corner beams and block in the crawl space, evidence of water penetration and movement. He had concerns of the load on beams and floor joists, as joists are not designed to be load points and this requires support by block. He further observed significant deflection of the door frame in the living room and sagging in dining room floor, showing issues of over loading. The water penetration, he opined, had been going on for some time. The degree of decay observed indicates that the decay has been proceeding for years, probably from day one. He felt that the water penetration was due to design and construction errors. He observed lack of maintenance such as the windows have not been painted or caulked for a while. He recommended further inspections and a more invasive inspection to determine the full extent of the structural issues.

[127] Mr. Koerth observed numerous structural concerns, which included:

(a) Overloading of a third floor Glulam beam;

(b) PSL 1, a beam supporting the loft floor, was overloaded;

(c) The doubled wood I-joist on which the north end of PSL 1 rested did not provide adequate support;

(d) Inadequately sized window lintel on the west wall;

(e) Trimmer rafters each side of the dormers required doubling;

(f) Improper connection of a double I-Joist rafter; and

(g) Inadequate blocking to carry the beam and post loads to the foundation.

[128] Mr. Koerth opined that:

(a) The Glulam ridge beam (an engineered wood beam comprising of strips of full-width wood lumber glued together longitudinally) over the main level living room (Glulam 1) has “insufficient structural capacity to resist the roof live and dead loading, even assuming that the intermediate post provided support.”[^25] He observed that the Glulam 1 spanned 41 feet east-west across the living room below, which had constructed an intermediate support post at 18 feet from the west wall (Parallel strand lumber - PSL 1).

(b) The PSL 1 in addition supported 7 feet wide strip of the loft floor and was supported on a 5-2x6 wood post and a double wood I-joist at the north end. He calculated and surmised that the load on the Glulam 1, even with the PSL 1, exceeds the parameters. He also indicated that the PSL 1 was overloaded. Mr. Koerth concluded that the PSL 1 “had an insufficient capacity to support the loft floor, not even considering the point load from the intermediate column under Glulam 1. A larger beam is required along with adequate post supports down to the foundation below.”

(c) The double wood engineered joists (wood I) were constructed on the first, second and third-loft floors. The gap in polystyrene insulation made the areas easily visible. Areas showed the wood I was supported by a side-connecting to a single rafter with no steel bracket, screws, blots or glue visible. He contended that the use of engineered joists would have required an engineered design/drawing. None were provided in the Building Permit Application. Such designs/drawings would have specified a methodology of connections. From his observations he concluded that the joist would require replacement “by an adequately sized beam, supported properly with posts at either end which extend to the foundation.”

(d) The window on the west wall lintel had insufficient structural capacity as indicated in his calculations. The lintel, he concluded, will require replacement with an adequately sized beam.

(e) The dormers in the third/loft level that were installed violate the Code that requires trimmer joists around the opening to be doubled when the header joist exceeds 800 mm. All the header joists exceeded the 800 mm. Mr. Koerth concluded that an additional rafter will be needed to each side of the 11 dormers along with a wider header to accommodate the new trimmers on the 11 dormers.

(f) The wood I joists on the loft level has improper and inadequate connection. He concluded that an engineered metal bracket and possibly strengthening of the rafter will be required.

[129] Mr. Koerth opined that all the deficiencies and structural inadequacies of some the beams as described “would not have been apparent without performing an analysis on them.” He conceded that such an analysis would be beyond what would be expected from a building inspector, but such analysis would be done at the Building Permit Application stage where the Township should have required proof to their satisfaction the adequacy and performance in the Cottage. The Township did not request proof of the satisfaction and adequacy of the beams installed which would be in the form of stamped engineering drawings or reports. This failure is contrary to provision 9.4.1.1 and 9.4.1.2. of the Code, which require that a structural member and/or connection that is not specifically listed in Part 9 of the Code “shall be” designed in compliance with Part 4 of the Code. The engineered beams, PSL and Glulam, are not listed in Part 9 and thus, must be constructed in conformance to Part 4 of the Code: the need for stamped engineered drawings or reports.

[130] Ms. Orr provided evidence that she was of the strong belief that professionals were involved in the design of the Cottage. The structural issues are design errors. The Township would not be responsible for design issues, as the Township would rely on the professionals that drafted the design. An inspector is not a deemed to be a professional engineer or architect. As Ms. Orr stated: “There is no obligation to require an engineer or architect to carry out field review.”[^26]

[131] Ms. Orr concluded:

In my opinion, there are few indications of major structural issues with the building, based on Duke’s photographs. Some cracks in interior finishes are expected in any building. In my experience, significant structural issues present themselves sooner than 20 to 30 years after the original construction. The extent of destructive investigation that has been carried out was not justified, in my opinion.”[^27]

[132] All three experts, Mr. Duke, Mr. Koerth and Ms. Orr, all agree that there are structural issues with the Cottage. Mr. Duke indicated that the issues are the result of construction. Mr. Koerth opines that the Township through their inspections should have identified the issues outlined that fail to comply with the Act and Code. He further opines that the lack of plans and specifications would make an inspection of an inspector difficult to ascertain, if not impossible, that the structural construction complies with the Act or the Code when inspecting the engineered beams and connections/bracing concerning load capacities.

[133] Ms. Orr was of the view that significant structural issues should have been noticed sooner.

[134] The court must ascertain whether the Township breached its duty of care, in that its inspections of the structural issues fell below the requisite standard of care.

[135] From the evidence presented, the court is satisfied, on the balance of probabilities, that the Township’s inspection of the structural issues fell below the standard of care. The court is of the view that an inspector should have concluded that the issues with the lintels, the 11 dormers and connections/bracing of the beams, did not comply with the Code. In addition, the court is satisfied that the Township’s inspectors did not know whether the engineered beams/ joists would be able to carry the load required for the Cottage pursuant to the Code. The Township had no plans or specifications to be able to come to such a conclusion. The Township could have ordered construction to cease until plans and/or specifications were provided to certify that the beams/joists met the required load capacities, or the connections/bracing complied. The Township could have terminated the building permit until proper plans and/or specifications were provided to satisfy the Township of compliance with the Code or the Act. The Township did neither.

[136] The court therefore concludes that the Township fell below the requisite standard of care in its inspections of the structural construction as outlined.

D. Did the breaches of the duty of care of the Township cause the plaintiff to suffer damages for which the Township is responsible?

General Principles

[137] The plaintiff contends that the actions of the Township caused the plaintiffs to suffer damages. Causation is established when the plaintiff proves on a balance of probabilities that the Township caused or contributed to the injury-the damages sought.[^28]

[138] Generally, the test for causation is the “but for” test. This test requires the plaintiff “to show that the injury would not have occurred but for the negligence of the defendant.”[^29]

[139] The Supreme Court of Canada in Clements v. Clements explained the “but for” test as follows:

[8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury—in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on the balance of probabilities, having regard to all the evidence, her action against the defendant fails.[^30]

[140] The application of the “but for” test is in “a robust common-sense fashion.”[^31] It is not a necessity that the plaintiff provides scientific evidence to indicate the precise effect the defendant’s negligence made to the injury. The court may infer that the defendant’s acts caused the loss from a common-sense inference from the evidence presented at the trial. When there are inferences, it is open for the defendant to “argue or call evidence that the injury would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.” [^32]

[141] The plaintiff need not prove that the actions of the defendant is the sole cause of the injury. As long as the defendant is part of the cause of the injury, the defendant can be found responsible for the injury caused to the plaintiff.[^33] In other words, even though there may be several causes of injury, the defendant is fully liable for the damages. However, the defendant should not be responsible to compensate the plaintiff for damages that they would have suffered anyway.[^34]

Application to the Evidence Presented

[142] The plaintiffs’ damages claim presents in two groupings. The first grouping are costs to remedy and rectify Code violations that the Township should have observed and fell below the standard of care in failing to do so (the first group). The second grouping are damages flowing from the Code violations, such as damages caused due to water penetration (the second group).

[143] The defendant argues that the plaintiff has failed to prove that the damages sought were due to any breach of the standard of care owed by the Township. In effect, that the damages suffered would have been suffered by the plaintiffs in any event, regardless of any breaches of the standard of care of the Township.

[144] The plaintiffs testified that they did inspect the Cottage before purchasing the Cottage. They were aware of the water damage in the garage due to a burst pipe. The price that was negotiated took into consideration monies that would be required to remedy repair concerns with the Cottage. The plaintiffs retained a home inspector. The report of the home inspector indicated concerns with the Cottage. The plaintiffs were provided the opportunity to have a final inspection performed by the Township before purchase. The plaintiffs decided not to have a final inspection performed. A final inspection was never performed either when construction was completed, and when Tim Norton owned the Cottage, or when the plaintiffs purchased the Cottage and took ownership.

[145] After the purchase of the Cottage and prior to Mr. Duke’s attendance at the Cottage, the plaintiffs did not have a third-party professional inspect the Cottage. The plaintiffs were aware of water penetration issues in the living room and kitchen area. The plaintiffs retained the services of tradesmen to perform repairs due to water damage. John Breen performed repairs on the skylight in the kitchen and living room area by diverting the flow of water further away from the windows in that area.

[146] Mr. Duke in his testimony indicated that the damage caused by water penetration appeared to be occurring for a long period of time; perhaps from the beginning. All three experts, Mr. Duke, Mr. Koerth and Ms. Orr, agreed that water penetration into the living room and kitchen area were coming from the outside, from the flow of water towards the Cottage. The wooden exterior decks were constructed with improper wood eyes and were constructed with a slope towards the Cottage, rather than away from the Cottage which would make the water flow move away from the Cottage. Again, all the experts agreed that construction of the wooden exterior decks is not covered by the Code and is not something the Township building inspector would be obligated to review. All three experts agreed that the construction of the wooden exterior decks is evidence of poor construction and poor construction practices.

[147] Mr. Duke further testified that the evidence of water penetration into the Cottage were from the roof, lack of flashing, poor construction of the chimney and to some extent poor maintenance.

[148] Mr. Koerth testified that there is evidence of water penetration in the crawl space from lack of covering and water penetration which could be from the roof, chimney or foundation wall. He testified that there was evidence of water penetration, similar to the testimony of Mr. Duke, concerning the decay of joist and wood floor beams.

[149] The defendant has assigned much credence to the fact that there was no final inspection on the Cottage. I wish to comment on that fact. I put very little weight on the fact that there was no final inspection. I do so for the following reasons. At the time the plaintiffs purchased the Cottage, the Cottage construction obviously would have been completed. Drywall up. Flooring completed. Ceiling completed. A final inspection at this time would have not been of much utility unless the inspection was invasive, that is, flooring removed, drywall removed, ceilings removed. It is for that reason inspections are required during the construction, before walls, ceiling, floors are closed. The only value of the final inspection would have been visibly apparent issues, such as the lack of roof vents, and whether the building constructed complied with the plans and specifications that supported the granting of the building permit. Hence, the lack of plans and building specifications would make a final inspection very difficult. What would the inspector be inspecting? How would the inspector know that the as built building complies to the building permit? Quite frankly, without the plans and specifications that formed the basis of the building permit, the inspector would not. The inspector would not know if updated “as built” plans or specifications would be required if there was any alteration to the construction than what was approved by the building permit and require new drawings to reflect what was actually built. This is critical to allow any subsequent purchaser to know that what was built adhered to the plans and specifications deposited with the Township and the plans, specifications and building were reviewed and inspected by the Township to ascertain compliance.

[150] Concerning the lack of maintenance by the plaintiffs, I do not find that the lack of maintenance had any affect on the breaches of the duty of care by the Township, that is the first group of damages. There is no persuasive evidence that lack of maintenance had any affect on these damages. The lack of maintenance, however, is pertinent to the second group of damages.

[151] On the damages claimed by the plaintiffs that concern the first group of damages, the court concludes that the plaintiffs have proven on the balance of probabilities, that the Township is responsible. The damages refer to areas that the Township was required to inspect pursuant to the Code. The Township’s conduct fell below the standard of care in not identifying the violations to the Code and ordering rectification. Thus, the areas concerning the stairs, the Glulam beams, the PSL beam, the wood I beam, the lack of proper brackets/ connections, the dormers, the window lintel, the lack of covering in the crawl space and the lack of an opening into the crawl space, are all items the Township should have observed and demanded rectification and it did not. The costs to remedy these areas by the plaintiffs, the court finds, is caused by the Township’s breaches.

[152] On the second group, namely water penetration, the court is not persuaded that the plaintiffs have proven, on the balance of probabilities, that the breaches of the Township caused the damages claimed. Thus, damages with respect to decaying flooring joists, floor beams and flooring due to water penetration, mainly in the living room and kitchen area, the court is not persuaded are caused by the breaches of the Township. There is ample evidence that water penetration was due to water flowing into the Cottage from the poor construction of the wooden decks and skylight. The plaintiffs took no steps to remedy the issue of the poor construction of the exterior decks. There was no compelling evidence that water penetration from the crawl space, lack of flashing or from the chimney, on the balance of probabilities, caused the damage to the decay of floor, joist, door and wall in the living room and kitchen area.

[153] On the basis of these findings, the court will now turn to the assessment of the damages sought.

What is the amount for damages that the Township is responsible?

[154] The plaintiffs seek damages as set out in:

(a) The invoices of Tom Stead Construction dated February 27, 2013, September 10, 2013 and December 7, 2018 (Stead invoices) in the amount of $32,863.97.

(b) The invoice of Duke Engineering dated November 15, 2013 in the amount of $3,277.00.

(c) The estimate of First General Muskoka (First General) dated October 13, 2020 in the amount of $510,231.71.

(d) General damages for distress.

[155] I will deal with each claim separately.

Stead Invoices

[156] Elizabeth Breen testified that Stead did remedial work on the water damage to the floors and joists in the living room by the door to the outside deck. Stead also did work in the garage, on garage roof, permit for garage and permit for the renovations. The invoices dated September 10, 2013 and February 27, 2013, indicate that work was performed for the areas indicated. The court is not persuaded that the work performed by Stead in these two invoices do relate to the actions of the Township that failed to meet the requisite standard of care. Thus, the court does not allow the claim for these two invoices.

[157] The invoice dated December 7, 2013, is for work performed to remove drywall. Elizabeth Breen in her evidence indicates that this work was to remove windows in the kitchen and remedy insulation.

[158] The invoice does not specify the work performed, where the work was performed and how this work relates to any breach of duty of care of the Township.

[159] A representative of Stead Construction was not called as a witness at the trial.

[160] The court is unable to determine on the balance of probabilities that the work performed in invoice dated December 7, 2013 relates to the actions of the Township. Thus, the claim for work performed in this invoice is not allowed.

Duke Engineering Invoice

[161] The Duke Engineering invoice dated November 15, 2013, bearing invoice number 1369, describes work to attend at the Cottage and review the existing structure as uncovered by Tom Stead Construction. The inspection was to verify Code compliance. There was no direct evidence from Mr. Duke on the specifics of work performed for this invoice. Given the court has concluded the invoices of Stead Construction relate to water penetration damage from the outside deck flow was not due to the conduct of the Township, the court cannot conclude that the work performed by Mr. Duke as described in this invoice relates to conduct of the Township.

[162] Accordingly, the claim for the amount set out in this invoice is not allowed.

First General Estimate Dated October 13, 2020

[163] Ron Dahl testified as to the estimate of the First General dated October 13, 2020. He testified that the estimate was based on the report of Envista dated January 15, 2019, with the increase in material costs due to market conditions. He testified that the costs to remedy would be $376,277.03 plus overhead of 10% being $37,627.71, profit of 10% being $37,627.71 and HST of $58,699.26 for a net figure of $510,231.71. Attached is a copy of the items listed in the estimate to facilitate referencing the detail and amounts for each item.

[164] First General’s estimate includes 49 items which break down costs of labour, material and engineering fees required to remedy the Code deficiencies. The court intends to review the items described in the estimate and refer to each item by the number as indicated in the estimate. The court does note that the defendant did not provide evidence that contradicts the bulk of the items listed in the estimate provided by First General, or the cost for the remedial work.

[165] Mr. Dahl testified that items 1-13 is work required to remedy Code violations in the first group, that is, to construct scaffolding to remove drywall, remedy the issues of the beams and brackets. The court is satisfied that the items described in items 1-13 are required to remedy the breach of duty of the Township. The amount is $40,339.15.

[166] Item 14 is the costs to remedy the stairs. This item is allowed. The amount is $18,634.50.

[167] Items 15 to 17 deal with action in the crawl space. Some of this work may relate to moisture due to the water penetration from the outside deck area in the kitchen/living room area. However, work can also be attributable to moisture in the crawl space due to lack of vapour barrier and lack of crawl space access. Accordingly, the costs associated with these items are allowed. The amount is $32,811.95.

[168] Items 18 to 20 are not allowed. The court is not satisfied that the seal of joists and concrete pan is required due to the actions of the Township. The court is not persuaded that a concrete pad in the crawl space is required before a vapour barrier is installed. The court is not persuaded that the damages claimed were contributed to by the actions of the Township. The courts take the view that the decay of floor joists and beams by water penetration is from the kitchen/living room door area.

[169] Items 21 and 22 are allowed. This work is to remedy the issues of the beams and connections which represent work in first group. The amount is $23,450.09.

[170] Items 23 to 26 relate to roof, soffit, kitchen and third floor framing, to restore these areas for work performed. These items represent work for the wall areas and not with respect to flooring in the kitchen area. The court is convinced that the actions of the Township contributed to the damages sought. Thus, these items are allowed. The amount is $20,203.04.

[171] Items 27 to 29 is for work in the kitchen and upper hallway. The court is not convinced that the work in the kitchen is due to actions of the Township. The paneling, tiles, plumbing and cabinets, is for work in the kitchen area. There is no distinction between work in the upper hallway and the kitchen area. These items are not allowed.

[172] Item 30 is allowed. It is cleaning pro and post construction. The amount is $3,715.44.

[173] Items 31 to 36 are for the kitchen wall and floor. These items are not allowed. The court is not convinced that the replacement of the wall and floor is due to some action of the Township. The damages sought appear to be due to the water penetration from the door patio and/or the skylight.

[174] Items 37 to 39 are allowed. These relate to clean up of furnace due to moisture causing corrosion. The court is satisfied that the moisture in the lower level crawl space could have contributed to the corrosion of the furnace. Dumpster is required for construction. Insulation is required due to work in the areas due to gap in insulation and remedial work for work in the first group. The amount is $36,257.54.

[175] Ms. Orr in her evidence indicated that removal of the drywall to inspect the vapour barrier is not necessary. She indicated that thermographic technology permits one to ascertain if there is an issue with the vapour barrier to determine if drywall required to be removed. The court did not hear any testimony on how this technology works; if the technology will be useful in the circumstances of this case and the costs to do so. It may very well be that thermographic technology may be a less costly means to determine if vapour barrier behind drywall is a required rectification, but without an evidentiary foundation the court is unable to adopt its use in the circumstances of this matter.

[176] Items 41 to 49 are allowed. These items relate to work in the first group. The work encompasses replacing drywall removed for insulation/vapour barrier and deficient Code work as outlined in the first group. Further, work concerning the dormers, lintels and spray insulations, is work outlined in the first group. Engineer fees are required and plumbing for the sump pump in the crawl space/lower area. The amount is $171,463.62.

Contingency Work

[177] The plaintiffs are also seeking an amount for contingency work. This amount is calculated at a rate of 20% of the work required. Mr. Dahl testified that this amount is required because as the work is being completed, it may be necessary to perform additional work that was not described in his estimate. He indicated as the walls are removed, it is very likely that further work may be required. Further, Mr. Dahl testified that the cost of material has increased substantially due to the pandemic. All these likely events, the plaintiffs argue, require a contingency amount.

[178] Neither of the parties directed the court to a case where a contingency fee was granted in a construction setting. There are cases in the personal injury realm where courts have granted a contingency amount as it is likely that the plaintiff’s injuries will worsen after trial.[^35] If the court ascertains that a contingency damage award is warranted, the contingency must be reasonably possible, and the amount awarded must be reasonable in the circumstances.[^36]

[179] In the circumstances, the court determines that a contingency damage award is not warranted. The Township is not an insurer. It is not obligated to be responsible for any and all deficiencies. It may be reasonable and likely that the plaintiffs may encounter further issues requiring remedy, and a substantial increase in material costs that were not expected or foreseen. Is the unexpected work due to or contributed to the breach of care of the Township? I am of the view that there must be a higher threshold of evidence required for the court to determine that contingency damages are warranted in a construction claim for damages. An expert opinion, perhaps, on the likelihood of the increase in costs or the likelihood of encountering further remedial damages would be of assistance. A detailed indication of what the unforeseen damages may be and where these damages may be expected and how this related to the conduct of the Township. No such evidence was provided in this matter.

[180] I therefore am not persuaded that contingency damages should apply in this case.

Overhead and Profit

[181] Mr. Dahl testified that 10% profit and 10% overhead is an unusual percentage used in the construction setting when estimating the costs of construction.

[182] Ms. Orr did not object that 10% profit and 10% overhead is not used. She also indicates that 10% profit and 5% overhead is also used.

[183] The court finds that the request of 10% profit and 10% overhead is not unreasonable in the circumstances of this case, that it is not new construction but remedial construction.

[184] The request of percentage for overhead and profit is allowed.

Damages for Distress

[185] The court may award general damages for mental and emotional distress, if the circumstances warrant.[^37] If the court is satisfied that the plaintiffs have suffered emotional and mental distress due to the conduct of the Township, the court may award general damages.

[186] The court accepts that the plaintiffs have been through an ordeal due to the actions of the Township. The plaintiffs indicated in their testimony the fact that they have had little use of their Cottage for an extended period. The distress due to the worry of a Cottage that is structurally unsafe and the failure of having the use of a Cottage which was to be a relaxing sanctuary to them and their family.

[187] I adopt the reasoning of the Court in Wesley and White that in the circumstances, I accept the testimony of the plaintiffs that the plaintiffs have suffered emotional and mental distress. The court awards the sum of $15,000 ($7,500 for each plaintiff).

Should the Amount for Damages be Reduced?

[188] The defendant in its pleading made an allegation that the plaintiffs failed to mitigate their damages, and, in the alternative, the plaintiffs are claiming damages that constitute a betterment to the original Cottage.[^38]

[189] At the trial, the defendant presented no evidence of failure to mitigate or betterment and made no submissions on these two issues.

[190] Consequently, the court concludes that the issue of mitigation and betterment are no longer being advanced by the defendant and makes no finding on either of these two issues.

Disposition

[191] The court grants judgment in favour of the plaintiffs in the sum of $346,875.33[^39] plus $15,000, for a total of $361,875.33.

Costs and Pre-Judgment Interest

[192] If the parties cannot resolve costs and prejudgment interest, the court will accept written submissions. The plaintiffs are to serve and file their submissions within thirty days from the date of this decision, and the defendant will have thirty days thereafter to serve and file its submissions. The submission is to be no more than five pages, double-spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. There is no right for reply. If no submissions are received within the time period set out herein, an order will be made that there will be no costs and the court will determine pre-judgment interest on the submissions, if any, filed.

­­_____________________________­­­­

Justice P.W. Sutherland

Release: January 22, 2021

APPENDIX

BUILDING CODE ACT R.S.O. 1980, c.C.51

Section 3

(1) The council of each municipality is responsible for the enforcement of this Act in the municipality.

(2) The council of each municipality shall appoint a chief building official and such inspectors as are necessary for the purposes of the enforcement of this Act in the areas in which the municipality has jurisdiction.

Section 5

(1) No person shall construct or demolish or cause to be constructed or demolished a building in a municipality unless a permit has been issued therefor by the chief official. 1978, c. 40, S. 2 (1).

Section 6

(1) The chief official shall issue a permit except where,

(a) the proposed building or the proposed construction or demolition will not comply with this Act or the building code or will contravene any other applicable law;

(c) the application therefor is incomplete or any fees due are unpaid. 1974, c. 74, s. 6 (1); 1978, c. 40, s. 3 (1).

(3) No person shall make a material change or cause a material change to be made to a plan, specification, document or other information on the basis of which a permit was issued without notifying the chief official and filing details of such change with him for the purpose of obtaining his authorization. 1978, c. 40, s. 3(2).

(4) Subject to section 15, the chief official may revoke a permit,

(a) where it was issued on mistaken or false information;

(b) where, after six months after its issuance, the construction or demolition in respect of which it was issued has not, in the opinion of the chief official, been seriously commenced; or

(c) where the construction or demolition of the building is, in the opinion of the chief official, substantially suspended or discontinued for a period of more than one year. 1974, c. 74, s. 6(4).

(5) No person shall construct or cause to be constructed a building in a municipality except in accordance with the plans, specifications, documents and any other information on the basis of which a permit was issued or any changes thereto authorized by the chief official. 1978, c. 40, s. 3(3).

Section 8

(1) Subject to section 11, an inspector may, for the purpose of inspecting a building or site in respect of which a permit is issued or an application for a permit is made, enter in or upon any land or premises at any time without a warrant.

(2) Where an inspector finds that any provision of this Act or the building code is being contravened, he may give the person whom he believes to be the contravener an order in writing directing compliance with such provision and may require the order to be carried out forthwith or within such time as he specifies.

(3) Where an inspector gives an order under this section, the order shall contain sufficient information to specify the nature of the contravention and its location.

(5) Where an order of an inspector made under this section is not complied with within the time specified therein, or where no time is specified, within a reasonable time in the circumstances, the chief official may order that all or any part of the construction or demolition respecting the building cease and such order shall be served on such persons affected thereby as the chief official specifies and a copy thereof shall be posted on the site of the construction or demolition and no person except an inspector of the chief official shall remove such copy until authorized by an inspector or the chief official.

(6) Where an order to cease construction or demolition is made under subsection (5), no person shall perform any act in the construction or demolition of the building in respect of which the order is made other than such work as is necessary to carry out the order of the inspector made under subsection (2). 1974, c. 74, s. 8.

Section 9

(1) An inspector or chief official may issue an order prohibiting the covering or enclosing of any part of a building pending inspection and where such an order is issued, an inspection shall be made within a reasonable time after notice is given by the person to whom the order is issued that he is ready for the inspection.

(2) Where a chief official has reason to believe that any part of a building has not been constructed in compliance with this Act and such part has been covered or enclosed, contrary to an order made by an inspector or chief official under subsection (1), he may order any person responsible for the construction to uncover the part at his own expense for the purpose of an inspection.

Section 10

(1) Subject to section 11, an inspector may enter in or upon any land or premises at any time without a warrant for the purpose of inspecting any building to determine whether such building is unsafe.

(2) Where an inspector finds that a building is unsafe, he may serve upon the assessed owner and each person apparently in possession of the building an order in writing setting out the reasons why the building is unsafe and the remedial steps that the inspector requires to be taken to render the building safe and may require the order to be carried out within such time as the inspector specifies in the order.

(3) Where an order of an inspector under subsection (2) is not complied with within the time specified therein, or where no time is specified, within a reasonable time in the circumstances, the chief official may by order prohibit the use or occupancy of the building and such order shall be served on the assessed owner and each person apparently in possession and such other persons affected thereby as the chief official specifies and a copy thereof shall be posted on the building, and no person except an inspector or the chief official shall remove such copy unless authorized by an inspector or the chief official. 1974, c. 74, s. 9(1-3).

(4) Where the chief official has made an order under section (2) and considers it necessary for the safety of the public, he may cause the building to be renovated, repaired or demolished for the purpose of removing the unsafe condition or take such other action as he considers necessary for the protection of the public and, where the building is in a municipality, the cost of the renovation, repair, demolition or other action may be added by the clerk to the collector’s roll and collected in like manner as municipal taxes. 1978, c. 40, s. 6.

Section 11

(1) For the purposes of an inspection under section 8 or 10, the inspector may,

(a) require the production of the drawings and specifications of a building or any part thereof, including any drawings prescribed by the regulations, for his inspection and may require information from any person concerning any matter related to a building or part thereof;

(b) be accompanied by any person who has the special or expert knowledge of any matter in relation to a building or part thereof;

(c) alone or in conjunction with such other person or persons possessing special or expert knowledge, make such examinations, tests, inquiries, or, subject to subsections (2) and (3), take such samples or photographs as are necessary for the purposes of the inspection;

(d) order any person responsible for the construction to take and supply at his own expense such tests and samples as are specified in the order.

[^1]: R.S.O 1980, c.51

[^3]: This action went to trial which resulted in a decision of Eberhard J. dated June 14, 2018 (2018 ONSC 3644). The trial decision was appealed to the Court of Appeal and the trial judge’s judgment in favour of the plaintiffs was set aside and the action was dismissed (2019 ONCA 598).

[^4]: See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 and R. v. Abbey, 2017 ONCA 640. The duty of an expert witness is codified in Rule 53 of the Rules of Civil Procedure.

[^5]: [1978] A.C. 728, [1977] 2 W.L.R. 1024 (H.L.)

[^6]: 1984 CanLII 21 (SCC), [1984] 2 SCR 2

[^7]: 2000 SCC 12, para.16

[^8]: Kamloops, supra, footnote 6, para. 40. Also see Ingles, supra, footnote 6, para. 16.

[^9]: Ingles, supra, footnote 7, at para. 17

[^10]: Cooper v. Hobart, 2001 SCC 79, paras. 30, 31, 32 and 33

[^11]: See Ingles, supra, footnote 7 and Rothfield v. Manolakos, 1989 CanLII 17 (SCC), [1989] 2 SCR 1259

[^12]: Ingles, supra, footnote 7, para. 17

[^13]: Ingles, supra, footnote 7, para. 23

[^14]: Ibid, para. 22. The difference between the two versions, the sections pertaining to Ingles-RS0 1990, c. B.13 and the 1980 version of the Act on the sections reviewed is the use of gender pronouns. The substance of the sections are the same.

[^15]: 1989 CanLII 17 (SCC), [1989] 2 SCR 1259, at p. 1267

[^16]: Ingles, supra, footnote 7

[^17]: Ibid, para. 20

[^19]: As described in section 2.3.1 of the Code.

[^20]: Interestingly, Mr. Watson confirmed that the notifications received were usually by telephone. The building department did not receive or require that notifications be in writing, even though the By-Law required notification in writing.

[^21]: Envista Report dated January 15, 2019, at p.17 of 30

[^22]: It is agreed that this “gap” in the Act was remedied in 2006 when the legislation was amended to explicitly state that a once a building permit is granted, the municipality has the obligation to inspect construction per the Act and the requisite Building Code.

[^23]: Chapeskie v. Lake of Bays, 1999 CarswellOnt 2275 (Ont.S.C.J) at paras. 47, 51 and 55; White v. The Corporation of the Town of Bracebridge, 2020 ONSC 3060 at para. 48

[^24]: Orr Brown Consulting Engineers Ltd. Report dated October 7, 2019, at p.16

[^25]: Envista Report dated January 14, 2019, section 6.1.6-Structural Issues, page 18 of 30

[^26]: Orr Brown Consulting Engineers Ltd. Report dated October 7, 2019, at pg. 16

[^27]: Ibid, pg. 17

[^28]: Athey v. Leonati, 1996 CanLII 183 (SCC), para.13

[^29]: Ibid, para. 14

[^30]: 2012 SCC 32, at para. 8

[^31]: Ibid, para. 9

[^32]: Ibid, para. 11

[^33]: Supra, footnote 28, paras. 17 and 19

[^34]: Blackwater v. Plint, 2005 SCC 58, [2005] S.C.J. No. 59 at para. 78. Also see Bowman v. Martineau, 2020 ONCA 330, at paras. 11, 13 and14.

[^35]: See Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 SCR 205; Athey, supra, footnote 28, at para. 27

[^36]: Gerula v. Flores 919950, 1995 CanLII 1096 (ON CA), 126 D.L.R.(4th) 506 (Ont. C.A.); Kania v. 1618278 Ontario Inc. cob as Hear and Crown Irish Pubs, 2015 ONSC 7042

[^37]: Carson v. Kearney, 2016 ONSC 1940; Wesley v. Geneau, 2020 ONSC 868; White v. The Corporation of the Town of Bracebridge, supra, footnote 23

[^38]: Statement of Defence, at para. 15

[^39]: The calculation is the addition of the amounts allowed.