COURT FILE NO.: CV-19-82342
MOTION HEARD: May 27, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO BE TW EE N :
JONATHAN MACDOUGALL and OANA NICOLETA KOLOZSVARI
Plaintiffs
and
SOUSAN AZADI, SASAN ESLAMI, CHARBEL AYOUB, o/a D.R.C. STUCCO SYSTEMS, HAMEL DESIGN INC., THE CITY OF OTTAWA, GENIVAR ONTARIO INC., WSP CANADA INC., KOTT LUMBER COMPANY, DANIEL SEGUIN, o/a SEG HOME INSPECTIONS, ABC CORPORATION and JOHN DOE
Defendants
BEFORE: Associate Justice M. Fortier
COUNSEL: Victoria Boddy for the plaintiffs
Christina Parkes for the proposed defendant, Lauzon Roofing Inc.
E N D O R S E M E N T
The plaintiffs bring a motion for an order amending the Statement of Claim and the title of proceedings, to correct the name of the defendant “ABC Corporation” to the proposed defendant “GT Construction Inc.” and to add AlbCad Design Inc., Lauzon Roofing Inc., and Orleans Caulking Inc. as defendants to this action.
The motion is unopposed by the proposed defendants GT Construction Inc. and AlbCad Design Inc. The director of Orleans Caulking Inc. was served with the motion record and did not appear at the hearing.
The proposed defendant Lauzon Roofing Inc. (“Lauzon”) resists the motion arguing that:
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a) The limitation period has expired;
b) There is prejudice to Lauzon because the owner and sole employee of Lauzon Roofing Inc., Bernard Lauzon, passed away on July 19, 2018; and
c) The plaintiffs do not have a legally tenable claim against Lauzon.
Background
On December 2, 2015, the plaintiffs Jonathan Macdougall and Oana Nicoleta Kilozsvari (the “plaintiffs”) purchased a home at 305 Beechgrove Ave. (the “residence”) in Ottawa from the defendants Sasan Eslami (“Eslami”) and Sousan Azadi (“Azadi”). Eslami and Azadi engaged certain of the defendants to construct the residence.
According to the plaintiffs, beginning in or about January 2016, and continuing to date, the plaintiffs started to discover numerous defects in the construction of the residence. They commenced an action on December 20, 2019 seeking damages from the defendants for the negligent construction and/or inspection of the residence.
The plaintiffs were initially able to determine the identity of some of the contractors, trades, and professionals that were involved in the construction of the residence through documents obtained from the City of Ottawa. These parties were named as defendants in the Statement of Claim.
When the Statement of Claim was issued, the plaintiffs were not aware of the identity of the framing and/or structural contractor retained by Eslami and Azadi, so they referred to “ABC Corporation” in the title of proceedings. The plaintiffs subsequently became aware that this contractor was G.T. Construction Inc. when Eslami and Azadi served their Statement of Defence and Crossclaim on July 21, 2020.
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The plaintiffs’ evidence is that they did not discover the identities of AlbCad Design Inc., Lauzon Roofing Inc., and Orleans Caulking Inc., until Eslami and Azadi served their Third Party Claim on August 10, 2020.
AlbCad Design Inc. is a building system engineering firm, hired by Eslami and Azadi to create the structural design for the residence.
Lauzon Roofing Inc. is a roofing contractor, hired by Eslami and Azadi to install the roof on the residence.
Orleans Caulking Inc. is a caulking contractor, hired by Eslami and Azadi to replace the caulking in the residence.
This action is in the early stages. The parties have not yet exchanged affidavits of documents.
The Law and Analysis
i- Adding parties where a limitation period may have expired
The court’s authority to add a party to an action is found in rule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that the court may, at any stage of a proceeding, add, delete, or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. Under rule 5.04(2), the court’s authority to add parties is discretionary, with the onus on the moving party to justify the amendment.
As indicated earlier, Lauzon raises the limitation period as a bar to the order requested by the plaintiffs. Under the circumstances, rule 5.04(2) must be considered along with section 21(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”), which prohibits adding a party to a proceeding when the limitation period has expired.
Generally, an action must be started on or before “the second anniversary of the day on which the claim was discovered”, otherwise it is barred by section 4 of the Act.
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The date on which a claim was “discovered” is fundamental to determining whether the limitation period regarding a claim has expired. Section 5 of the Act sets out the process for determining when a claim is discovered as follows:
(1) A claim is discovered on the earlier of,
a) the day on which the person with the claim first knew, i- that the injury, loss or damage had occurred,
ii- that the injury, loss or damage was caused by or contributed to by an act or omission,
iii- that the act or omission was that of the person against whom the claim is made, and
iv- that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
b) the day on which a reasonable person with the abilities and in the circumstances of the person with a claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
It is noteworthy that the courts have held that the discovery of a claim for relief involves both the identification of the wrongdoer and the discovery of his or her acts, or omissions, that constitute liability. As held in CRD Construction Ltd. v. Uel McFall Consulting Inc, 2019 ONSC 1296, 98 C.L.R. (4th) 171, at para. 41: “[i]t is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence”.
The approach to be followed when considering discoverability was summarized by the Court of Appeal in Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at paras. 31-32. The plaintiff must first rebut the presumption in section 5(2) of the Act, that he or she knew of the matters referred to in section 5(1)(a) of the Act on the day the act or omission on which the
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claim is based took place. The plaintiff need only prove that the actual discovery of the claim was not on the date the events giving rise to the claim took place. The plaintiff does not have to show due diligence. The plaintiff must then offer a reasonable explanation on proper evidence as to why the claim could not have been discovered through the exercise of reasonable diligence, as contemplated by section 5(1)(b). The evidentiary threshold is low, and the plaintiff’s explanation must be given a generous reading and considered in the context of the claim.
It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings. Where there is an issue of fact or credibility on the discoverability allegation, the court should allow the addition of the new party, with leave to the responding party to plead a limitations defence. This is particularly the case if the issue is due diligence rather than actual knowledge: see CRD Construction, at para. 44.
The plaintiffs submit that the claim against Lauzon was not discovered until October 18, 2019 at the earliest, and they did not discover the identity and involvement of Lauzon until Eslami and Azadi issued a Third Party Claim against the roofing company on August 10, 2020.
It is the plaintiffs’ evidence that following a water leak from the roof above the master bedroom in September 2019, they retained the services of Fishburn Sheridan & Associates Ltd. (“Fishburn”) to investigate the residence’s deficiencies. Fishburn assessed the roof and indicated in their report issued on October 18, 2019, that there were a number of defects with respect to the roof installation. Fishburn reported that the roof had not been properly waterproofed, the flashings were improperly installed, and there were numerous membrane wrinkles intersecting with vulnerable lap joints. The plaintiffs allege that Lauzon is partly or wholly liable for these deficiencies, including the moisture and structural damage to their home due to the improper installation of the roof.
While the plaintiffs maintain that there is no limitation period or discoverability issue with the facts as presented on the motion, they say the evidence at the very least raises issues of fact and/or credibility that should proceed to trial where the proposed defendant may attempt to establish a limitation defence.
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It is Lauzon’s position that the plaintiffs did not exercise due diligence in identifying Lauzon as the roofing contractor, and therefore any claim against Lauzon is statute barred and Lauzon should not be added as a party to this action.
Lauzon argues that the plaintiffs were aware of issues with the roof as early as October 2015, when they retained the services of the defendant Daniel Seguin o/a SEG Home Inspections (“Seguin”) to perform a pre-purchase home inspection of the residence. A chart in the inspection report by Seguin noted that the roof coverings and the roof drainage system needed to be repaired or replaced. Lauzon contends that had the plaintiffs asked Eslami and Azadi about the roof and any warranties at that time, they would have identified Lauzon as early as October 2015. According to Lauzon, the plaintiffs have not adduced evidence to adequately explain why when they received Seguin’s report, they did not make inquiries about the potential roof problems or the identity of the contractor.
Although the plaintiffs acknowledge that they retained the services of Seguin to perform a home inspection in October 2015, Seguin did not note any defects with respect to water infiltration or structural deficiencies in his home inspection report. Seguin did not inspect or comment on the waterproofing under the roof membrane or the insufficient overlapping of the flashing. Although Seguin advised the plaintiffs that the roof membrane was wrinkled, he stated verbally that this did not pose any problem other than being cosmetically unappealing and that it did not need to be repaired. It was not until receiving the Fishburn report on October 18, 2019 that what the plaintiffs thought was simply a cosmetic defect actually reflected a deficiency in the adhesion of the membrane, causing damage. It was not until August 2020 that the plaintiffs discovered the identity of Lauzon as the roofing contractor.
Based on the foregoing, there is at the very least an issue of fact or credibility as to when the plaintiffs were aware of the material facts that formed the basis for their claim against Lauzon.
Accordingly, as there is an issue of fact or credibility on the discoverability allegation, the court should allow the addition of the new party with leave to plead a limitations defence, unless prejudice would result that could not be compensated for by costs or an adjournment.
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ii- Prejudice
The onus of proving prejudice under rule 5.04(2) is on the party alleging it, unless a limitation period has expired, in which case the onus shifts to the party seeking the amendment to lead evidence to displace the presumption of prejudice.
As I have determined that there is a discoverability issue regarding when the claim against Lauzon was discovered, the onus remains with Lauzon to prove irredeemable prejudice under rule 5.04(2).
Lauzon argues that if it is added as a party to the action, it will suffer prejudice that could not be compensated by costs or an adjournment for the following reasons:
a) Bernard Lauzon (“Bernard”), the owner of Lauzon, passed away on July 19, 2018. Bernard was the only employee of Lauzon and did the roof work on the residence in 2010. Given his death, the proposed defendant cannot obtain evidence as to what Bernard was told by the homeowners, what documents he was provided to review before starting construction, and what work he did or did not do on the roof.
b) The records pertaining to this matter may not all be available.
c) As it has been over 10 years since the installation of the roof, the ability of any of the parties to recall specific details regarding the roof, or other material details that may assist Lauzon’s defence, will be diminished.
- I am not persuaded that Bernard’s death creates a non-compensable prejudice to the proposed defendant Lauzon. Based on the evidence before me, Lauzon remains an active corporation and Diane Lauzon (“Diane”), Bernard’s widow, is a director of the corporation. Given that Diane is a director, she can be examined for discovery on behalf of the corporation. In addition, there are documents, including estimates and invoices, that are still available, to mitigate any prejudice resulting from Bernard’s death. This case is still in its very early stages, and in my opinion, there is no irredeemable prejudice to the proposed defendant Lauzon by being joined in the action.
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- While the court’s authority to add parties under rule 5.04(2) is discretionary, with the onus on the moving party to justify the amendment, the courts have found that the threshold for this type of motion is low: see Kozey v. Canadian Tire Corporation (o/a Canadian Tire), 2018 ONSC 7542, at paras. 22-23. Further, the court’s discretion to refuse to add parties must be based on principles of fairness and judicial efficiency. It would be appropriate, for example, to refuse to add a party if joinder would unduly complicate or delay the proceeding, or if the addition of a party appears to be an abuse of process: Plante v. Industrial Alliance Life Co., 66
O.R. (3d) 74, at para. 25.
- I am satisfied that the plaintiffs have met their onus to justify adding Lauzon, as well as AlbCad Design Inc. and Orleans Caulking Inc., as defendants to this action for the following reasons:
a) The proposed defendants were contractors retained by Azadi and Eslami, who formerly owned and built the residence. These parties performed construction work at the residence and may be wholly or partially liable for their deficient work.
b) The proposed defendants are necessary parties whose liability arises out of the allegedly deficient construction of the residence. There are questions of law and fact in common, and in my view, adding these parties will promote trial fairness.
c) As pleadings have not yet closed in this action, adding these parties are not likely to unduly delay or complicate the hearing or cause undue prejudice to the other parties.
d) There is no evidence or allegation that adding the proposed defendants would be an abuse of process.
iii- Legally tenable claim
- Rule 26.01 of the Rules of Civil Procedure provides that on a motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. Rule 26.01 is mandatory and requires the court to grant leave to amend pleadings unless there is non compensable prejudice.
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- The test on a motion to amend a statement of claim was set out by Master MacLeod (as he then was) in Plante, at para. 21, as follows:
a) The amendments must not result in irremediable prejudice.
b) The amended pleading must be legally tenable.
c) The proposed amendments must otherwise comply with the rules of pleading.
As stated by Master MacLeod, “[i]n short, Rule26.01 requires that a properly framed proposed amendment that is tenable at law will be allowed providing it does not result in prejudice that cannot be addressed in costs”: Plante, at para. 22.
Lauzon argues that the plaintiffs’ proposed amendments related to Lauzon are not legally tenable as they are claims of pure economic loss, which are not recoverable in tort on the facts and evidence of this case.
The leading case on pure economic loss is that of the Supreme Court of Canada in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., 1995 CanLII 146 (SCC), [1995] 1 S.C.R. 85.
The issue in the appeal before the court in Bird was whether a contractor responsible for the construction of a building may be held tortiously liable for negligence to a subsequent purchaser of the building, who is not in contractual privity with the contractor, for the cost of repairing defects in the building arising out of negligence in its construction. In that case, the Supreme Court held that the law has now progressed to the point where contractors (as well as subcontractors, architects, and engineers) who take part in the design and construction of a building will owe a duty of care in tort to subsequent purchasers of the building if it can be shown that it was foreseeable that a failure to take reasonable care in constructing the building would create defects that pose a substantial danger to the health and safety of the occupants. When negligence is established and such defects manifest themselves before any damage to persons or property occurs, they can be held liable for the reasonable cost of repairing the defects and putting the building back into a non-dangerous state: at para. 43.
According to Lauzon, the plaintiffs led no evidence in either the pleadings or the motion material, that shows that the roof laid by Lauzon poses a substantial danger to their health and
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safety. The plaintiffs’ allegations of water leaks caused by the improper waterproofing and deficient construction of the roof do not link Lauzon to any dangerous defects, such as mold, that have been pleaded against the other defendants.
- In my view, the proposed amendments are legally tenable and the determination of whether the alleged defects are dangerous or not should be left to the trial court and ought not be determined on a pleading amendment motion. As stated by Master MacLeod in Plante, at para. 21:
The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting.
- I have reviewed the proposed amendments and I am satisfied that they comply with the rules of pleading for all the proposed defendants. There is no evidence before me that would lead me to conclude that the amendments would result in irremediable prejudice to the proposed defendants. Accordingly, the plaintiffs are granted leave to amend the Statement of Claim as requested.
Disposition
For the reasons outlined above, the court orders as follows:
1- That the Statement of Claim shall be amended in the form affixed to these Reasons for Decision as Schedule “A”.
2- The title of proceeding shall be amended by changing the name of the defendant “ABC Corporation” to “GT Construction Inc.” and by adding AlbCad Design Inc., Lauzon Roofing Inc., and Orleans Caulking Inc. as defendants to this action.
3- The plaintiffs are entitled to their costs of this motion. If counsel cannot agree on the
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amount of costs, they may file written submissions not exceeding three pages, exclusive of their respective bills of costs. Counsel for the plaintiffs shall file her cost submissions within 15 days of the release of this decision. The cost submissions of counsel for Lauzon shall be filed within 10 days thereafter.
Associate Justice M. Fortier
DATE: September 24, 2021
020
Schedule "A"
Court File No. 19-82342
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JONATHAN MACDOUGALL and OANA NICOLETA KOLOZSVARI
Plaintiffs
- and –
SASAN ESLAMI, SOUSAN AZADI, CHARBEL AYOUB o/a D.R.C. STUCCO SYSTEMS, HAMEL DESIGN INC., THE CITY OF OTTAWA, GENIVAR ONTARIO INC., WSP CANADA INC., KOTT LUMBER COMPANY, DANIEL SEGUIN o/a SEG HOME INSPECTIONS, ~~ABC CORPORATION~~ G.T. CONSTRUCTION INC., ~~and~~ JOHN DOE, ALBCAD DESIGN INC., LAUZON ROOFING INC. and ORLEANS CAULKING INC.
TO THE DEFENDANTS
AMENDED STATEMENT OF CLAIM
Defendants
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiffs. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiffs’ lawyer or, where the Plaintiffs do not have a lawyer, serve it on the Plaintiffs, and file it, with proof of service in this court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario.
If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.
Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your Statement of Defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL
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FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not
been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.
Date: December 19, 2019 Issued by Amended:
Courthouse 161 Elgin Street
Ottawa, ON K2P 2K1
TO:
Sasan Eslami
17 Grangemill Avenue Ottawa ON K2H 6A4
AND TO:
Sousan Azadi
17 Grangemill Avenue Ottawa ON K2H 6A4
AND TO:
Charbel Ayoub o/a D.R.C. Stucco Systems
327 Montfort Street Ottawa, ON K1K 5N5
AND TO:
Hamel Design Inc. 170 Main Street Ottawa, ON K1S 1C2
TO:
City of Ottawa
110 Laurier Avenue West Ottawa, ON K1P 1J1
AND TO:
Genivar Ontario Inc.
100 Commerce Valley Drive West Thornhill, ON L3T 0A1
AND TO:
WSP Canada Inc.
100 Commerce Valley Drive West Thornhill, ON L3T 0A1
022
AND TO:
Kott Lumber Company 3228 Moodie Drive Nepean, ON K2J 4S8
AND TO:
Dan Seguin o/a SEG Home Inspections
500 Des Coniferes Orleans, ON K4A 2Y7
AND TO:
G.T. Construction Inc 1 Staghorn Green Ottawa, ON K2R 1A3 ABC Corporation
AND TO:
John Doe
AND TO:
AlbCad Design Inc. 38 Auriga Drive Ottawa, ON K2E 8A5
AND TO:
Lauzon Roofing Inc. 591 Clarke Avenue Ottawa, ON K1K 0Y8
AND TO:
Orleans Caulking Inc.
100-645 Edward Street, C.P. 82 Rockland, ON K4K 1K6
023
CLAIM
- The Plaintiffs claim against the Defendants as follows:
(a) Damages for breach of contract and/or negligence in the amount of
$500,000.00;
(b) Pre-judgment and post-judgment interest pursuant to the Courts of Justice Act, RSO 1990, c C43, as amended;
(c) Their costs of this action on a full indemnity basis, plus all applicable taxes; and,
(d) Such further and other relief as to this Honourable Court may deem just.
THE PARTIES
The Plaintiffs, Jonathan Macdougall and Oana Nicoleta Kolozsvari are individuals residing in Ottawa, Ontario. They are the registered owners of 305 Beechgrove Avenue, Ottawa, Ontario (the “Property”).
The Defendants, Sasan Eslami (“Eslami”) and Sousan Azadi (“Azadi”), are individuals residing in Ottawa, Ontario. Eslami and Azadi are the previous owners of the Property.
The Defendant, Charbel Ayoub o/a D.R.C. Stucco Systems (“D.R.C.”), is sole proprietorship that carries on business supplying and installing EIFS. D.R.C. was
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retained by Eslami and/or Azadi to supply and install a 1 ½” Exterior Insulation Finished System at the Property.
The Defendant, Hamel Design Inc. (“Hamel Design”), is a Canadian corporation that carries on business as an architectural firm in Ottawa, Ontario. Hamel Design was retained by Eslami and/or Azadi to design and provide the architectural drawings for the construction of the Property.
The Defendant, the City of Ottawa (the “City”), is a municipality whose responsibilities, among others, include the inspection of residential properties to ensure that they are safe for residential habitation.
The Defendant, Genivar Ontario Inc., which has since been amalgamated into WSP Canada Inc., is a federal corporation that carries on business as structural engineers in Ottawa, Ontario. WSP Canada Inc. and Genivar Ontario Inc. will collectively be referred to as “Genivar”. Genivar was retained by Eslami and/or Azadi to design, oversee and/or construct the second-floor deck at the Property.
The Defendant, Kott Lumber Company (“Kott”), is a general partnership that carries on business supplying lumber and building material and operates under the registered business name Kott Lumber Company. Kott was retained by Eslami and/or Azadi to supply lumber for the construction of the Property. Nascar is Kott’s floor joist products division.
The Defendant, Dan Seguin o/a SEG Home Inspections, is a sole proprietorship that carries on business as a home inspection company. The Plaintiffs retained
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Dan Seguin o/a SEG Home Inspections to perform a pre-purchase home inspection of the Property.
- The Defendant,
ABC CorporationG.T. Construction Inc. (“G.T. Construction”), is a
corporation that carries on business as a roof installer and/or framing installer.
- The Defendant, John Doe, is an individual residing in Ontario that is a roof installer and/or framing installer. In the alternative, John Doe is an employee or contractor
employed by G.T. Constructions Inc.
- The Defendant, AlbCad Design Inc. (“AlbCad Design”), is a building engineering
firm retained in or about August 2010 by Eslami and/or Azadi to create the
structural design for the Property.
- The Defendant, Lauzon Roofing Inc. (“Lauzon Roofing”), is a roofing contractor
hired by Eslami and/or Azadi in or about December 2010 to install the roof of the
Property.
- The Defendant, Orleans Caulking Inc. (“Orleans Caulking”), is a caulking
contracted hired by Eslamie and/or Azadi in or about February 2015 to replace and
repair the caulking on the Property.
ESLAMI AND AZADI PURCHASE OF THE PROPERTY
- On or about March 31, 2010, Eslami and Azadi purchased the property described as Lt 35, PL 267; OTTAWA/NEPEAN. Eslami and Azadi then redeveloped the property and severed the property on or about January 16, 2012, creating 303
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Beechgrove Avenue and 305 Beechgrove Avenue. Eslami and Azadi constructed a custom-built home on the Property (i.e., at 305 Beechgrove Avenue).
- The Property, after construction, is a 3-story, 2,780 square feet residence with two floors over an at grade basement level. The home is constructed with wood stud wall framing, wood floor joists and a low slope wood roof truss system, bearing on a cast in place reinforced concrete foundation with a cast in place slab on grade floor at the basement level.
THE CONSTRUCTION OF THE PROPERTY
Eslami and/or Azadi retained Hamel Design to design and provide the architectural drawings and plans for the custom-built two-storey, single-family home. The design drawings are dated August 30, 2010.
Eslami and/or Azadi retained AlbCad Design to create the structural design of the
house in or around August 2010.
The drawings and plans for construction of the Property were approved by the City of Ottawa.
Eslami and/or Azadi retained Kott to supply the lumber and other building materials for the construction. Kott also provided the floor and roof framing details for the roof joist and truss products they supplied. Although Kott supplied two sets of details for the floor and roof framing members and connectors, only the first set of details dated August 27, 2010 was stamped by the City of Ottawa. Neither set matches the architectural drawings and plans created by Hamel Design.
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Construction of the home began in or about October 2010.
In or around December 2010, Eslami and/or Azadi retained Lauzon Roofing to
install the roof of the property.
- On or about April 4, 2011, Eslami and/or Azadi retained D.R.C. to supply and install an EIFS, which was manufactured by Sto Corp (“Sto”). D.R.C. represented that its work would meet or exceed the standards and requirements provided for in the Ontario Building Code and the standards set by the EIFS Council of Canada.
D.R.C. also represented that the EIFS would be installed in accordance with the manufacturer’s specifications. D.R.C. provided an 8-year material and 5-year labour warranty. Eslami and/or Azadi paid $22,950 plus H.S.T. for the supply and installation of the EIFS.
- Accordingly, the exterior of the Property is comprised primarily of the EIFS, while the rest of the cladding is a combination of plywood panels and stone veneer.
THE CITY OF OTTAWA INSPECTION REPORTS
During the course of the construction, the City of Ottawa carried out inspections of the progress of construction. Specifically, the City of Ottawa inspected and required changes be made with respect to the structural support and framing in the home and the vapour barrier on the exterior of the home.
The Plaintiffs state that Eslami and/or Azadi and/or their contractors failed and/or refused to comply with the City’s requirements and/or misrepresented the quality of the work to the City’s inspectors as set out in the Inspection Reports.
028
On or about December 22, 2011, the City performed its final inspection of the Property and granted an Occupancy Permit, despite the fact that Eslami and/or Azadi and/or their contractors had failed to comply with the City’s requirements as set out in its’ previous inspection reports.
On or about May 4, 2012, Eslami and Azadi listed the Property for sale for $1.255 million.
THE PREVIOUS OFFERS AND HOME INSPECTIONS
- In or around February 2015, Eslami and/or Azadi hired Orleans Caulking to
replace and repair the caulking on the Property.
- In or about September 2019, the Plaintiffs discovered that Eslami and Azadi had received a previous offer for the purchase of the Property on June 5, 2015 and had received a home inspection report from Property Inspection Network Ltd. As part of its inspection, Property Inspection Network Ltd. used a TRAMEX roof and wall scanner to inspect the EIFS siding and roof of the Property. The Inspection Report noted inter alia the following deficiencies:
(a) The EIFS was not installed with a proper drainage plain between the EIFS foam and underlying waterproof membrane;
(b) Moisture meter revealed the presence of moisture trapped between the EIFS and sheathing behind;
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(c) There was evidence of water pooling on the roof near the roof drain and there were high levels of moisture measured under the roofing membrane near the roof drain; and,
(d) There were air pockets under the roof membrane.
After receiving the Inspection Report from Property Inspection Network Ltd., Eslami and Azadi arranged for Property Inspection Network Ltd. to perform a second inspection and discovered that the area under the west wall window had been repaired by Eslami and Azadi and that the area was equipped with a proper drainage layer and a protective water-proofing membrane, which was installed under the window flashing.
The Plaintiffs later discovered during the repairs to the building envelope in the summer of 2019 that Eslami and Azadi had only repaired and installed a proper drainage layer and protective water-proofing membrane under this particular west wall window. In the summer of 2019, the Plaintiffs also discovered that a large section of the EIFS had been replaced along the east wall, from beneath one of the windows on the second floor (the “East Window”) to the foundation. The rest of the building envelope had never been repaired.
Despite the second inspection, as a result of the deficiencies found in the first Inspection Report by Property Inspection Network Ltd., the Agreement of Purchase and Sale dated June 5, 2015 was terminated on June 24, 2015.
030
THE PLAINTIFF’S PURCHASE OF THE PROPERTY
- On or about October 3, 2015, the Plaintiffs entered into an Agreement of Purchase and Sale with Eslami and Azadi for the purchase of the Property for $1,090 million. The sale closed on December 2, 2015. The Plaintiffs moved into the Property on or about December 21, 2015.
THE PLAINTIFFS’ HOME INSPECTION
- On or about October 8, 2015, the Plaintiffs retained Dan Seguin o/a SEG Home Inspections to perform a pre-purchase home inspection of the Property. Dan Seguin o/a SEG Home Inspections did not find any defects with respect to water infiltration or structural deficiencies, though he did note that the finishing of the wood siding required repairs.
INSURED FLOOD
- In or about January 2016, a flood occurred from the upstairs bathroom water supply line and caused water damage to the hardwood flooring on the first and second floors, as well as the first floor ceiling. The Plaintiffs submitted a claim to their home insurer, who repaired the damage. During the course of the repairs, the Plaintiffs discovered that there was staining and moisture on the subfloor beneath the East Window. The Plaintiffs opened the drywall beneath the East Window but found no evidence of any leaks.
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In or about the summer of 2016, the new hardwood floorboards on the second floor began to buckle near the East Window, indicative of water infiltration from around the East Window and/or roof above.
In or about the fall of 2016 or winter of 2017, the Plaintiffs discovered structural movement in the basement and the inside and outside drywall corner beads separated from the drywall panels, the drywall screws and nails popped through the surface and the door trim separated. The Plaintiffs completed the repairs but never discovered the cause of the movement. The Plaintiffs also noticed that the trim around many of the windows in the home were showing signs of swelling and discolouration indicative of water infiltration. They also discovered evidence of previous patching and poor caulking to repair and/or conceal moisture infiltration issues encountered by Eslami and/or Azadi.
In or about the fall of 2017, the Plaintiffs again opened the wall under the East Window but did not find the source of the leak. By this time, the hardwood floor boards and baseboards under the East Window in the first floor dining room had also begun to buckle and swell.
THE EXTERIOR CLADDING DEFICIENCIES AND REPAIRS
- On or about April 22, 2018, the Plaintiffs obtained a Thermography Report from Property Inspection Network Ltd. The Thermography Report used a FLIR B250 infrared camera to locate thermal evidence of thermal deficiencies in the home. The Plaintiffs discovered that there was air leakage and heat loss around all exterior doors and windows, there was heat loss around the electrical receptacles
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on the basement east wall and the west wall of the music room due to the absence of insulation and cold spots in floor spaces due to inadequate insulation. There was also air leakage at the bottom of the walls that was consistent with poorly sealed floor headers. A large discrepancy in heat levels at the floor registers throughout the home was also found, which is suspected to be the result of a poorly installed distribution system.
With respect to the East Window, the Plaintiffs discovered that water was leaking inside the wall cavity below the lower left side of the window. Further investigation, including destructive testing, was required to determine the extent of the damage to the structure and the need for repairs.
In or about the summer and fall of 2018, the Plaintiffs retained Cutting Edge Construction to investigate and perform repairs to the East Window. During the course of the investigation and repairs, the Plaintiffs discovered that the studs and rim joints of the east wall were rotten and covered with mold. The Plaintiffs therefore had to rebuild a portion of the east wall and replace all the insulation around the East Window. New waterproofing and EIFS was installed on the east wall.
In or about October 2018, after completing the repairs on the east wall, the Plaintiffs again retained Cutting Edge Construction to investigate water infiltration around a window on the west wall. Again, it was discovered that the waterproofing was deficient and sheathing rotted and covered in mold. The Plaintiffs therefore
033
had to replace the damaged sheathing and insulation. New waterproofing and EIFS was installed on the west wall at this location.
In or about October 2018, the Plaintiffs discovered that the backside of the sheathing beneath the west facing first floor bathroom was soaking wet and the wall cavity was full of mold.
During these repairs, the Plaintiffs discovered significant water damage that was caused by the improper installation of the EIFS and waterproofing, causing major mold and rotting below all of the windows. In addition, the following deficiencies were discovered:
(a) Eslami and/or Azadi had attempted to caulk the windows to prevent leakage, however the caulking was improper and the acyclic finish was tight to the windows so the caulking did not adhere properly to the acrylic;
(b) Improper drip edges installed above the windows;
(c) The water proofing membrane were not to standard around the windows;
(d) The scratch coat membrane was below industry standards;
(e) There was inadequate blue skin and vapour barrier tie-ins;
(f) There was improper shimming of the windows and foam insulation;
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(g) The marine plywood had no drop edge, was drilled through all water proofing membranes and there was no air space behind it and the building envelope for drainage;
(h) The tile on the front of the house was falling off as it was installed with substandard mortar and there was no drip edge above it where it tied-in to the EIFS, as required by the manufacturer installation instructions;
(i) There was an improper tie-in on the front porch to base of the windows in the living room;
(j) The detailing on the roof of the fireplace behind the build out was not appropriate;
(k) There were improper point loads;
(l) There was improper drainage;
(m) There was major settling and structural warping at the front of the house; and,
(n) The front of the house was sinking and there was splitting and cracking of the front concrete steps, distortion in the front walls supporting the second and first floor deck loads, separation of the trims and finishing from the second floor front windows, a bow in the second floor front windows; a drop and torsion on the front second floor overhang, a dip in the first floor, a drop on the front walkway and driveway, and pooling of water, bad
035
drainage and deterioration of material at the ground level on the front of the house.
On or about June 23, 2019, the Plaintiffs obtained an Indoor Environmental Assessment and found high levels of mold in the air inside the home and observed mold growth on the exterior of the home. Mold remediation was recommended, which the Plaintiffs intend to complete following the repairs to the exterior of the home.
On or about October 18, 2019, the Plaintiffs discovered that the EIFS system was not installed in accordance with the National Building Code, 2010 and/or the Ontario Building Code, which required that a second drainage plane be built into the wall assembly and was installed contrary to the manufacturer’s instructions. There was no effective water barrier, no effective “rain screen” drainage, and the sheathing exhibited varying degrees of moisture damage throughout.
In addition, following a water leak from the roof above the master bedroom, the Plaintiffs discovered that the roof was not properly waterproofed, the flashings were improperly installed, and there were numerous membrane wrinkles, several of which intersected with the vulnerable lap joints. The Plaintiffs repaired and waterproofed the section of the roof where the leak was discovered.
Given the extent of the deficiencies and damages, the Plaintiffs were advised that they had to repair the entire building envelope, which was begun by Ottawa Construction Demolition in the summer of 2019. In particular, the Plaintiffs had to replace the existing OBS sheathing, repair the water damaged wood structure, and
036
install new EIFS cladding. The stone veneers and plywood panels also had to be removed and new ones installed. To date, the repairs are still ongoing.
THE STRUCTURAL DEFICIENCIES AND REPAIRS
In or about May 2018, the Plaintiffs noticed that the second level floor in the master bedroom that overhangs the front of the house by approximately 2 feet was starting to sag, the windows in the master bedroom were bowing outwards, the interior trim around the windows were separating, the window sills were pulling away from the window framing and the baseboards beneath the windows were warped.
On or about November 19, 2019, the Plaintiffs discovered that Eslami and/or Azadi and/or their contractors had not followed the architectural designs, or either set of the floor and roof framing details as provided by Kott for the joist and truss products. The Plaintiffs discovered that the structure of their home, particularly the structure of the front and rear overhangs, were not structurally sound. Eslami and/or Azadi and/or their contractors had used improper hanger connections, improper support beams and posts, and improperly installed header flanges and fasteners.
As a result of these structural deficiencies, the floor in the master bedroom at the front of the house is deflected and sloping down towards the front of the house. The underside of the front overhang also slopes in the same manner. Further, at the rear of the house, the structural deficiencies are causing sections of the window framing to separate. There are also a number of deficiencies and signs of
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distress to the interior finishes attributed to the movement of the building, including, but not limited to, deflection of the interior floors, drywall cracks, separation of drywall joints, bowing of walls in the basement, drywall “nail pops” and cracks in the foundation.
In addition, the HSS posts in the basement may be deflecting as well. Further investigation of the HSS posts and framing in the basement is required.
To repair the known structural deficiencies, the Plaintiffs will be forced to replace the framing below the window, insulation and floor framing members at the front overhang and install the missing floor joist with adequate joist hangers and hangers required by Kott’s framing details at the rear overhang. The required LVL beam must also be installed in place of the floor joists at the front overhang and the missing floor joist installed in the vacant hangers at the rear overhang. The Plaintiffs will be forced to vacate their home while these repairs are underway.
THE PLAINTIFFS’ DAMAGES
- To date, the Plaintiffs have incurred the following damages:
| Payor | Description | Amount (inclusive of H.S.T.) |
|---|---|---|
| Cutting Edge Construction | Investigate and repair East Window | $19,460.40 |
| Cutting Edge Construction | Repair to west window | $9,605.00 |
| Ottawa Construction Demolition | Repair to exterior building envelope | $39,402.60 |
| Robinson Roofing | Roof repairs | $3,250.59 |
| Merkley Supply Ltd. (for the material) and Tom Caulfield (for the installation) | Stone veneers | $9,596.22 |
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| BOL-DAN Foundation & Masonry Repairs Inc. | Foundation repairs | $3,164.00 | | Fishburn Sheridan & Associates Ltd. | Building envelope study | $3,456.00 | | Fishburn Sheridan & Associates Ltd. | Building structural study | $4,104.00 | | Property Inspection Network Ltd. | Thermographic Assessment Report | $1,214.75 |
The Plaintiffs will be required to incur additional expenses for the stucco application, parging application, roofing repairs and further structural investigations and repairs, the particulars of which will be provided prior to trial. The Plaintiffs will incur additional expenses as they will be required to vacate their home during the structural repairs.
The Plaintiffs also incurred and will incur expenses to repair the interior of their home due to the moisture and structural damage, the particulars of which will be provided prior to trial.
LIABILITY OF ESLAMI AND AZADI
- The Plaintiffs state that deficiencies and damages were caused in whole or in part by Eslami and Azadi’s negligence, the particulars of which include, but are not limited to, the following:
(a) They knew or ought to have known that the construction of the Property, and particularly the structure of the second floor overhang and installation of the exterior cladding, contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
039
(b) They knew or ought to have known that the installation of the EIFS was contrary to the manufacturer’s instructions and specifications;
(c) They knew or ought to have known that the construction plans and architectural drawings had insufficient detail as to whether the construction would meet the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(d) They submitted plans for the construction of the Property that contravened the Ontario Building Code and/or the National Building Code of Canada 2010;
(e) They hired trades and/or employees who either submitted drawings and/or built the Property contrary to the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(f) They knew or ought to have known that the construction of the Property did not conform to the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010;
(g) They knew or ought to have known that the construction of the Property did not conform to the plans as submitted to and approved by the City of Ottawa and constructed the Property regardless;
(h) They knew or ought to have known that the construction of the Property was completed using poor construction practices and with poor workmanship;
040
(i) They knew or ought to have known about the moisture issues in the home as they attempted to do localized repairs and caulk the windows to prevent leaks;
(j) They knew or ought to have known when they did the localized repairs that the remainder of the exterior walls were also incorrectly constructed and installed;
(k) They failed to demolish and/or re-construct the improperly built Property; and,
(l) They constructed the Property without the skills, training or experience to do so.
LIABILITY OF D.R.C.
The Plaintiffs state that D.R.C. represented that its work would meet or exceed the standards and requirements provided for in the Ontario Building Code and the standards set by the EIFS Council of Canada. D.R.C. also represented that the EIFS would be installed in accordance with the manufacturer’s specifications.
The Plaintiffs state that deficiencies and damages to the building envelope and the resulting damages were caused in whole or in part by D.R.C.’s negligence, the particulars of which include, but are not limited to, the following:
(a) They knew or ought to have known of the history of water infiltration problems with EIFS siding that are not equipped with a drainage layer
041
between the house’s sheathing and actual cladding, and yet installed the EIFS without a drainage layer;
(b) They constructed and installed the exterior cladding contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(c) They knew or ought to have known that the installation of the EIFS was contrary to the manufacturer’s instructions and specifications;
(d) They completed the installation of the EIFS and exterior cladding using poor construction practices and poor workmanship; and,
(e) They installed the EIFS and exterior cladding without the skills, training or experience to do so.
LIABILITY OF HAMEL DESIGN
- The Plaintiffs state that deficiencies and damages were caused in whole or in part by Hamel Design’s negligence, the particulars of which include, but are not limited to, the following:
(a) They completed construction plans and architectural drawings that provided for construction that did not meet the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(b) They knew or ought to have known that the construction plans and architectural drawings had insufficient detail as to whether the construction
042
would meet the provisions of the Ontario Building Code and/or the
National Building Code of Canada 2010;
(c) They submitted plans for the construction of the Property that contravened the Ontario Building Code and/or the National Building Code of Canada 2010; and,
(d) They knew or ought to have known that the construction of the Property did not conform to the plans as submitted to and approved by the City of Ottawa.
LIABILITY OF THE CITY OF OTTAWA
- The Plaintiffs state that deficiencies and damages were caused in whole or in part by the City of Ottawa’s negligence, the particulars of which include, but are not limited to, the following:
(a) It approved construction plans and architectural drawings whose terms contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(b) It approved construction plans and architectural drawings with insufficient detail as to whether the construction would meet the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(c) It carried out inadequate and/or inappropriate inspections of the construction of the Property;
043
(d) It failed to ensure the construction of the Property conformed to the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010;
(e) It failed to ensure the construction of the Property conformed to the plans as submitted to and approved by the City of Ottawa;
(f) It approved the construction of the Property despite contraventions of the
Ontario Building Code and/or the National Building Code of Canada 2010;
(g) It approved the construction of the Property despite poor construction practices;
(h) It failed to require the demolition and/or re-construction of the improperly built Property; and,
(i) It issued a Certificate of Occupancy despite the Property failing to meet the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010.
- The City of Ottawa breached the fiduciary duty it owed to the Plaintiffs as subsequent purchasers of the subject property by:
(a) Approving construction plans whose terms contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
044
(b) Approving construction plans with insufficient detail as to whether the construction would meet the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(c) Carrying out inadequate and/or inappropriate inspections of the construction of the Property;
(d) Failing to ensure the construction of the Property conformed to the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010;
(e) Failing to ensure the construction of the Property conformed to the plans as submitted to and approved by the City of Ottawa;
(f) Approving the construction of the Property despite contraventions of the
Ontario Building Code and/or the National Building Code of Canada 2010;
(g) Approving the construction of the Property despite poor construction practices;
(h) Failing to require the demolition and/or re-construction of the improperly built Property; and,
(i) Issuing a Certificate of Occupancy despite the Property failing to meet the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010.
045
LIABILITY OF GENIVAR
- The Plaintiffs state that structural deficiencies and damages were caused in whole or in part by Genivar’s negligence, the particulars of which include, but are not limited to, the following:
(a) They designed a structure that they knew or ought to have known contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(b) They submitted drawings that they knew or ought to have known contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(c) They knew or ought to have known that the construction of the Property did not conform to the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010;
(d) They knew or ought to have known that the construction of the Property was completed using poor construction practices and with poor workmanship; and,
(e) They submitted a design for the Property without the skills, training or experience to do so.
046
LIABILITY OF KOTT LUMBER COMPANY
- The Plaintiffs state that structural deficiencies and damages were caused in whole or in part by Kott’s negligence, the particulars of which include, but are not limited to, the following:
(a) They designed a structure that they knew or ought to have known contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(b) They submitted drawings that they knew or ought to have known contravened the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(c) They knew or ought to have known that the construction of the Property did not conform to the requirements of the Ontario Building Code and/or the National Building Code of Canada 2010;
(d) They knew or ought to have known that the construction of the Property was completed using poor construction practices and with poor workmanship;
(e) They submitted a design for the Property without the skills, training or experience to do so; and,
047
(f) They supplied construction and framing material, including lumber, which was inappropriate for the construction of the home and/or contrary to the specifications in its designs.
LIABILITY OF DAN SEGUIN O/A SEG HOME INSPECTIONS
- In the event that the deficiencies are determined to be patent defects, the Plaintiffs state that Dan Seguin o/a SEG Home Inspections is negligent in failing to detect and report said patent defects during its home inspection. The Plaintiffs state that Dan Seguin o/a SEG Home Inspections knew or ought to have known that it should have used a TRAMEX roof and wall scanner to inspect the EIFS siding of the Property during the home inspection.
LIABILITY OF ~~ABC CORPORATION~~ G.T. CONSTRUCTION AND JOHN DOE
- The Plaintiffs state that
ABC CorporationG.T. Construction and/or John Doe
represented that the work would be completed in a good and workmanlike manner. ABC Corporation G.T. Construction and/or John Doe also represented that the
framing and structure of the house would be installed in accordance with the framing manufacturer’s specifications and instructions.
- The Plaintiffs state that deficiencies and damages to the structure and the resulting damages were caused in whole or in part by
ABC CorporationG.T. Construction
and/or John Doe’s negligence, the particulars of which include, but are not limited to, the following:
048
(a) They constructed and installed the framing of the house contrary to the design specifications provided by Kott, AlbCad Design and/or Hamel
Design;
(b) They knew or ought to have known that the framing was installed contrary to the manufacturer’s instructions and specifications;
(c) They constructed and installed the framing of the house in contravention of the provisions of the Ontario Building Code and/or the National Building Code of Canada 2010;
(d) They completed the installation of the framing using poor construction practices and poor workmanship; and,
(e) They installed the framing without the skills, training or experience to do so.
- G.T. Construction is vicariously liable for any employees or independent
contractors it employed, including John Doe.
LIABILITY OF ALBCAD DESIGN INC.
- The Plaintiffs state that the deficiencies and damages were caused in whole or in
part by AlbCad Design’s negligence, the particulars of which include, but are not
limited to, the following:
049
(a) They completed construction plans and architectural drawings that
provided for construction that did not meet the provisions of the Ontario
Building Code and/or the National Building Code of Canada 2010;
(b) They knew or ought to have known that the construction plans and
architectural drawings had insufficient detail as to whether the construction
would meet the provisions of the Ontario Building Code and/or the
National Building Code of Canada 2010;
(c) They submitted plans for the construction of the Property that contravened
the Ontario Building Code and/or the National Building Code of Canada
2010; and,
(d) They knew or ought to have known that the construction of the Property
did not conform to the plans as submitted to and approved by the City of
Ottawa.
LIABILITY OF LAUZON ROOFING INC.
- The Plaintiffs state that the deficiencies to the structure and the resulting damages
were caused in whole or in part by Lauzon Roofing’s negligence, the particulars of
which include, but are not limited to, the following:
(a) They installed the roof of the house contrary to the design specifications
provided by Kott, AlbCad Design and/or Hamel Design;
050
(b) They knew or ought to have known that the roof was installed contrary to
the manufacturer’s instructions and specifications;
(c) They installed the roofing of the house in contravention of the provisions of
the Ontario Building Code and/or the National Building Code of Canada
2010;
(d) They completed the installation of the roof using poor construction
practices and poor workmanship; and,
(e) They installed the roof without the skills, training or experience to do so.
LIABILITY OF ORLEANS CAULKING INC.
- The Plaintiffs state that Orleans Caulking represented that the work would be
completed in a good and workmanlike manner. Orleans Caulking also represented
that the caulking repairs would be done in accordance with the manufacturer’s
specifications and instructions.
- In or about October 2018, the Plaintiffs discovered improper caulking on the
windows in the home. There was also major mold and rotting of the EIFS and
waterproofing underneath the all the windows.
- The Plaintiffs state that the deficient repairs and the resulting mold and rotting of
the walls and structure were caused in whole or in part by Orleans Caulking’s
negligence, the particulars of which include, but are not limited to, the following:
051
(a) They completed the repairs using poor construction practices and poor
workmanship; and,
(b) They completed the work without the skills, training or experience to do
so.
- The Plaintiffs state that all of the defects claimed with respect to the Property are
dangerous defects that pose a real and substantial danger to the Plaintiffs as
occupants of the Property.
- The Plaintiffs plead and rely on the following:
(a) The Negligence Act, RSO 1990, c N1;
(b) The Limitations Act, 2002, SO 2002, c 24, Sched B;
(c) The Building Code Act, 1992, SO 1992, c 23 and the regulations thereunder; and,
(d) The National Building Code of Canada 2010.
- The Plaintiffs propose that this action be tried in Ottawa, Ontario.
052
December 19, 2019 Amended:
AUGUSTINE ? BATER
? BINKS LLP
141 Laurier Avenue West, Suite 1100
Ottawa ON K1P 5J3 – Box 126
Victoria L. Boddy – LSO# 63333P
Email: ~~vlb@abblaw.ca~~ – Ext. 131
Tel: 613-569-9500
Fax: 613-569-9522
Lawyers for the Plaintiffs
RICHARDSON HALL LLP
1204-99 Metcalfe Street Ottawa, ON K1P 6L7
Victoria L. Boddy – LSO #63333P
Tel: 613-366-7180
Fax: 613-366-7560
Lawyers for the Plaintiffs
053
JONATHAN MACDOUGALL et al.
-and-
SOUSSAN AZADI et al.
Plaintiffs
Defendants
Court File No.
ONTARIO SUPERIOR COURT OF JUSTICE
PROCEEDING COMMENCED AT OTTAWA
AMENDED STATEMENT OF CLAIM
AUGUSTINE BATER BINKS LLP
141 Laurier Avenue West, Suite 1100
Ottawa ON K1P 5J3 - Box 126 RICHARDSON HALL LLP
1204-99 Metcalfe Street Ottawa, ON K1P 6L7
Victoria L. Boddy (63333P) – LSO# 63333P ~~vlb@abblaw.ca - Ext 131~~
vboddy@richardsonhall.com
Tel: 613-569-9500 366-7180
Fax: 613-569-9522 366-7560
Lawyers for the Plaintiffs,
Jonathan Macdougall and Nicole Kolozsvari