COURT FILE NO.: CV-18-595996
DATE: January 4, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Construction Act, R.S.O. 1990, c.C.30
BETWEEN:
MULTITECH CONTRACTING 2000 INC.
Plaintiff
Peter B. Cozzi, for the plaintiff, Tel.: 416-440-0046, Fax: 416-440-1682.
G. J. INVESTMENTS INC.
Dillon L. Shields for the Defendant Tel.: 416-596-1177, Fax: 1-866-280-9491.
Defendant
HEARD: November 19, 2020.
Master C. Wiebe
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] This reference concerns this one action wherein Multitech Contracting 2000 Inc. (“Multitech”) purported to preserve and perfect a claim for lien in the amount of $29,972.31 in relation to the renovation work it did on Unit 715 of a commercial condominium located at 18 Wynford Drive, Toronto. The owner of Unit 715, G. J. Investments Inc. (“GJ”), initially denied the entirety of the claim.
II. BACKGROUND
[2] I begin with a summary of the facts of this case that are undisputed.
[3] In June, 2017 GJ owned Unit 300 of 1775 Lawrence Avenue East, Toronto and leased it to a company named InsureWise Brokerage Inc. Both GJ and InsureWise are owned by Sajad Gulamali. Unit 300 is about 1,500 square feet in size.
[4] In June, 2017 GJ bought Unit 715 of 18 Wynford Drive (a commercial condominium) for the purpose of transferring its business to that premise. Again, the intention was to lease the premises to InsureWise. The closing date of the purchase was July 5, 2017. Unit 715 was only 953 square feet in size. In the meantime, GJ sold Unit 300 with the sale closing on September 29, 2017.
[5] GJ wanted to renovate Unit 715. Multitech did considerable renovation work in other areas of 18 Wynford Drive. As a result, the principal of GJ, Sajad Gulamali, approached the principal of Multitech, Carlos Lopes, for a quotation for the work on Unit 715.
[6] On June 9, 2017 Mr. Lopes provided a quotation for the work. It contained a fixed price, $69,000 plus HST, plus a list of work to be done. There was a negotiation, which resulted in a reduction of the price to $60,000 plus HST. Mr. Gulamali inserted references to Unit 300 into certain specific items of work in the document. The contract required that the work be started on July 4, 2017 and reach “full completion” by August 31, 2017. Mr. Gulamali inserted a clause that specified that there would be a 10% reduction of the contract price if the work was delayed “for one wk..” The contract specified that the price was to be paid upon completion of the work.
[7] Mr. Lopes stated that he met with Mr. Gulamali in Unit 300 after the contract was signed. Mr. Gulamali stated in his affidavit that this meeting happened “at the beginning of June, 2017.”
[8] The work was delayed. On September 21, 2017 Multitech rendered its invoice for the contract price of $60,000 asserting that the work was completed. The invoice stated that there would be another invoice in the future for “all extra work.”
[9] GJ moved into Unit 715 on September 25, 2017; but, according to Mr. Gulamali, GJ could not start conducting business until mid-November, 2017 given the unfinished work. He sent an email to Mr. Lopes on September 25, 2017 about the unfinished work. GJ paid Multitech $25,000 on October 18, 2017 and another $25,000 on November 15, 2017.
[10] Multitech delivered an invoice dated December 14, 2017 for 11 items of extra work totaling $10,544.26. There is a disagreement between the parties as to when this document was delivered. Multitech alleges it was delivered by mail around the time stated in the invoice. GJ alleges that it was delivered by email on February 26, 2018.
[11] On February 27, 2018 Multitech registered a claim for lien in the amount of $29,972.31. It purported to perfect this lien by commencing this action on April 17, 2018. There was a statement of defence on May 10, 2018. A year later, on May 6, 2019, Multitech obtained a judgment of reference from Justice Archibald referring this action to a Toronto lien master. It took Multitech until March 6, 2020 to obtain an order for trial from me.
[12] On July 27, 2020 I conducted the first trial management conference. I ordered a one-day summary trial to take place on October 8, 2020. It came out at this time that GJ did not dispute $12,882.24 of the Multitech claim. I encouraged GJ to pay this amount forthwith.
[13] On October 2, 2020 Mr. Freeman, senior counsel for GJ, emailed me advising that Multitech’s affidavits did not contain key documents required to prove Multitech’s claim for extras. He wanted me to prohibit Multitech from submitting and relying on these documents at the trial hearing. I convened a trial management conference on October 7, 2020. Mr. Cozzi appeared for the first time as counsel for Multitech, replacing its original lawyer, Andrew Lewis. After hearing submissions, I adjourned the trial hearing to November 19, 2020 and set a schedule for the delivery of further affidavits for evidence in chief. I ordered that Multitech pay GJ costs thrown away of $3,000.
[14] On October 13, 2020 GJ paid Multitech the undisputed $12,882.24 less the costs order of $3,000.
[15] Mr. Cozzi filed another affidavit from Mr. Lopes sworn November 13, 2020 and a factum. At the beginning of the trial hearing on November 19, 2020, Mr. Shields moved for various orders, namely orders excluding the Lopes affidavit of November 13, 2020, striking two paragraphs of Mr. Lopes’ affidavit sworn October 23, 2020 as they referred to two documents not previously produced, and prohibiting the use by Multitech of six documents in the joint document book as they were not referred to in the Mr. Lopes’ affidavits.
[16] I heard brief argument. Mr. Cozzi tried to justify the Lopes November 13, 2020 affidavit on the basis that it dealt with the quantum meruit issue which he said GJ raised for the first time as an issue in Mr. Gulamali’s November 9, 2020 affidavit when he denied the Multitech claim for extras on account of a failure to obtain his authorization. I did not agree, as I found that this issue was clearly addressed in Mr. Gulamali’s earlier affidavit. As a result, I did not find the Lopes November 13, 2020 affidavit to be proper reply evidence and I excluded it.
[17] However, I denied the remainder of the GJ motion. I found that the inclusion of the two new documents did not prejudice GJ’s case. I found that the failure by Mr. Lopes to refer to filed documents meant that those documents were of no probative value thereby rendering that portion of the motion immaterial. I deferred the issue of the costs of the motion to the determination of the costs of the proceeding in general.
[18] The trial hearing proceeded. Multitech called only Mr. Lopes. GJ called only Mr. Gulamali. The evidence came to an end and I heard closing argument all on November 19, 2020. Counsel delivered costs outlines to me that evening and the next day.
III. ISSUES
[19] As indicated in my trial management directions of July 27, 2020 and based on the evidence and submissions, I find that the following are the issues to be determined:
a) Is Multitech entitled to seven of the extras claimed in its December 14, 2017 invoice?
b) Is GJ entitled to the 10% discount of the contract price due to delay?
[20] The claimed seven extras total $8,682. The claimed 10% discount is $6,780. The total of the two issues is $15,462.
IV. WITNESSES
[21] Before I analyze the issues, I will comment on the credibility of the witnesses.
[22] There were issues of credibility with both witnesses, but I generally found Mr. Lopes the more credible witness. Mr. Lopes’ affidavits contained more detail and more corroboration. His evidence also made more sense.
[23] What impressed me in particular was Mr. Lopes’ version of the contract formation. He stated clearly in cross-examination that, while Mr. Gulamali envisioned the design of Unit 715 to be the same as the design of Unit 300, that could not be done in fact. Mr. Lopes stated that he told Mr. Gulamali that the only transposition that could be done was the floor, front entrance area and the furniture (particularly the fireplace and water fountain). Otherwise, he said, Unit 300 was “irrelevant.” This evidence made sense as Unit 715 is significantly smaller than Unit 300, namely at least about 550 square feet smaller. Furthermore, the signed contract document corroborates this testimony. The contract document does not state that Unit 715 is generally to be the same as Unit 300. The document makes specific references to Unit 300, which specific references indeed concern the floor, the front entrance and the furniture. This testimony significantly enhanced Mr. Lopes’ credibility.
[24] The defendant attacked the credibility of Mr. Lopes primarily on one issue, namely the alleged three-week delay in July, 2017. In cross-examination Mr. Lopes was asked several times about whether his work for GJ on another unit at 18 Wynford Drive (ie. design and quotation for construction) concerned Unit 204. He agreed. Mr. Shields pointed out to Mr. Lopes and in argument that the design Mr. Lopes produced in fact concerned another unit, Unit 205, which was larger in size. Furthermore, Mr. Shields pointed out that the Multitech design for Unit 205, as attached to Mr. Lopes’ affidavit, is dated November 17, 2017. Mr. Shields argued that this meant that Multitech could not have done the work on Unit 205 in July, 2017 as Mr. Lopes alleged, thereby allegedly undermining the credibility of Mr. Lopes’ delay evidence.
[25] I am not convinced by this attack. When his mistake about Unit 204 was pointed out to him, Mr. Lopes conceded the mistake and stated that the July work was really about Unit 205. I note that in his first affidavit, the one sworn on September 1, 2017, Mr. Lopes did not identify the unit as Unit 204. He described the work as follows: “To the best of my recollection it was unit 210 or 211 in the same building 18 Wynford Drive.” Therefore, he admitted in chief that his memory as to the identity of the unit was not exact.
[26] Furthermore, circumstantial evidence lends credence to Mr. Lopes’ version of the July, 2017 delay. The evidence indicates that Mr. Gulamali’s plans in July, 2017 as to where he was going to conduct his insurance business were uncertain. GJ had purchased Unit 715 but it was significantly smaller than Unit 300. He admitted getting Mr. Lopes to view Unit 204 of 18 Wynford Drive to see whether the Multitech design for Unit 715 worked for Unit 204. Mr. Lopes advised that this could not be done due to structural issues with Unit 204. It is undisputed that GJ then purchased Unit 205 and that Unit 205 is much larger than Unit 715. All Mr. Gulamali said concerning the date of purchase of Unit 205 was in this affidavit of September 14, 2020, namely that GJ “eventually” purchased Unit 205 “for use by a real estate company.” That Multitech prepared a design for Unit 205 is undisputed. That Multitech stopped working in July, 2017 is also undisputed. The evidence contained no contemporaneous complaints from GJ about this stoppage. A reasonable inference to be drawn from all this evidence is that in fact GJ purchased Unit 205 as early as July, 2017, got Multitech to stop its work on Unit 715 and start work on a design for Unit 205 with a view to relocating GJ’s business to that unit, and in a few weeks changed its relocation plan and ordered Multitech to resume working on Unit 715, which change of plan caused Multitech to delay the completion of its design for Unit 205. This inference is consistent with Mr. Lopes’ evidence.
[27] Mr. Gulamali, on the other hand, was less credible. His affidavits had less corroboration. I also found his affidavit and oral evidence argumentative and evasive. For instance, in his affidavit he repeatedly attacked Mr. Lopes’ affidavit in hyperbolic language stating that it contained “a list of fictions.” He never provided an explanation as to the timing and rationale for Multitech’s work on Unit 205. He also showed a capacity to evade legal obligation. He did not pay money he owed Multitech for almost two years and only paid close to trial when I strongly suggested that he pay it.
[28] But most concerning was Mr. Gulamali’s evidence about his alleged lease extension concerning Unit 300. In the affidavit he swore on September 14, 2020 for the trial, Mr. Gulamali stated he negotiated “an extension to my leaving 1775 Lawrence for two, and then three weeks.” In cross-examination, Mr. Cozzi introduced an affidavit Mr. Gulamali swore in this action on June 12, 2019. In this affidavit, Mr. Gulamali stated that the reason the contract work had to be completed by August 31, 2017 was that “the lease [concerning Unit 300] ended on that date.” He stated further in this affidavit that he got that “exit date” extended. In his November 9, 2020 affidavit, Mr. Gulamali stated that he “was forced to negotiate a three-week extension to my lease at 1775 Lawrence Avenue East, from August 31, 2017 to September 21, 2017.” In short, he indicated that GJ was a tenant of Unit 300 on a lease that was expired on August 31, 2017 and that GJ negotiated a three-week extension to that lease. However, in cross-examination Mr. Gulamali admitted that GJ in fact owned Unit 300, that GJ leased Unit 300 to Mr. Gulamali’s company, InsureWise, that there was no lease extension, and that the real exigency for GJ was its promise to the buyer of Unit 300 to allow the buyer into Unit 300 by August 31, 2017 to commence renovation work. The exposure of this subterfuge significantly undermined Mr. Gulamali’s overall credibility.
[29] As a result of this assessment of credibility, I preferred the evidence of Mr. Lopes over that of Mr. Gulamali where the two conflicted.
V. ANALYSIS
a) Is Multitech entitled to the seven claimed extras?
[30] In Multitech’s December 14, 2018 invoice there are seven claims for extras that are in issue. In the invoice they total $8,682. At trial, this total was reduced by $50 to $8,632. Multitech has the onus of proving these claims. The claims are the following:
HVAC – linear diffusers and boxes, repair electric fireplace, supply 2 framed: $2,724 plus HST;
Kitchen valance: $300 plus HST;
Crown molding in kitchen (including materials): $398 pus HST;
Kitchen ENN extension and counter-top: $2,150 plus HST;
Special order French door for kitchen: $761.57 plus HST;
Electrical – rough-in wires and install 5 LED and 5 dimmers: $540 plus HST;
ESA permit: $760 plus HST.
[31] GJ’s primary position as stated by GJ in the Scott Schedule, by Mr. Gulamali throughout his evidence and by Mr. Shields in argument, is that all of these items were included in the contract scope and were not therefore valid extras.
[32] I do not accept this position as it contradicts GJ’s formal position on the record. As Mr. Cozzi pointed out in argument, GJ formally admitted in its statement of defence that the items in the December 14, 2017 invoice were in fact extras and that only the reason GJ was not liable to pay them was that they had not been “authorized.” This is what is stated in paragraph 14 of the GJ statement of defence: “Multitech rendered its December 14, 2017 invoice to GJI containing unauthorized extra charges. These extra charges were for unnecessary items that were outside the scope of the parties’ written contract” (emphasis added). This admission was never formally withdrawn. The admission is consistent with what the courts have defined “extras” on a lump sum contract such as this to be, namely “work that is substantially different from, and wholly outside the scope contemplated by the contract”; see King Road Paving and Landscaping Inc. v. Plati, 2017 ONSC 557 at paragraph 97 quoting from Ron’s Trending and Hauling Ltd. v. City of Estevan, (1985) 11 C.L.R. (SK QB) at paragraph 8.
[33] In his September 14, 2020 affidavit Mr. Gulamali attached a form of amended statement of defence. He stated in this affidavit that “I verily believe that [this amending document] correctly sets out important facts and the actual time frame.” There has been no motion, not even during the trial, to have the statement of defence amended. Therefore, the GJ formal position on the record remains as originally pleaded. But I notice that the amending document attached to the Gulamali affidavit leaves untouched the paragraph 14 admission about the claimed extras being “outside the scope of the parties’ written contract.” Therefore, Mr. Gulamali in effect reinforced this admission with his affidavit evidence. I also note that Mr. Gulamali during cross-examination admitted that there were extras.
[34] I also incidentally found Mr. Lopes’ affidavit evidence explaining the extras compelling. For instance, he stated that the additional linear diffusers were necessitated by Mr. Gulamali’s change to a drywall ceiling throughout much of the unit. That this was a change is clear from the scope described in the contract which limited the drywall ceiling to the front entrance and corridors. Mr. Lopes stated that drywall ceilings normally require linear diffusers. Concerning the French door, the contract drawings, which were approved by Mr. Gulamali, indicate a sliding packet door for the kitchen, not a French door. Concerning the kitchen, the contract drawings show that the cupboard extension and counter-top were added features. Therefore, for all these reasons, I find that the extras in dispute were in fact extras.
[35] What of the issue of “authorization” raised by GJ in its pleading? I also do not accept it. The contract refers to extras under the heading, “Standards of Work.” Item 6 under that heading reads as follows: “Omissions in the Contract Documents and any work requested in variance to the Contract Documents are considered extra to the Contract and are not included in the Contract Price. Any additional work, required due to site conditions known to the Owner and not disclosed to the Contractor, or which could not be reasonably anticipated by the Contractor, are (sic) not included in the Contract Price and shall be extra to the Contract Price.” In short, there is no requirement in the contract that Multitech get the prior authorization of GJ for extra work, a requirement that is common in many other construction contracts. As I read this section of the contract, the manifestation of the extra work itself creates the liability on GJ to pay for it. Therefore, having admitted that the disputed extras are indeed extras, the contract requires that GJ pay for them regardless of the absence of authorization.
[36] There is authority for the proposition that, whatever the contract says or does not say, the plaintiff must prove authorization from the owner, expressed or implied, to establish a claim for extras; see King Road Paving, op. cit., paragraph 96, quoting from 2016637 Ontario Inc. o/a Balkan Construction Catan Canada Inc. et al., 2013 ONSC 4727, paragraph 13. Mr. Gulamali alleged throughout his evidence that he did not expressly authorize the disputed extras. However, he did not deny that the alleged extra work was done. Mr. Lopes, on the other hand, stated that Mr. Gulamali had “requested” the extras. Given GJ’s formal admission on the record of the extra work, I do not accept Mr. Gulamali’s denial of authorization. As stated by the court in Balkan Construction, op. cit., paragraph 13, an owner standing by and allowing extra work to be done knowing it to be extra work amounts to implied authorization. I find that to the be case here. This is particularly the case given the above noted provisions in the contract about extras that do not require prior authorization. I also, for the reasons stated earlier, prefer the evidence of Mr. Lopes over that of Mr. Gulamali.
[37] This brings us to the issue of quantification. Because of the absence of a requirement for prior authorization of extra work in the contract, I find that it was implicit in the contract that extra work would be charged on a time and material basis. That is in fact what Multitech did in preparing its December 14, 2017 invoice. Did it provide proof at the trial of the quantum claimed?
a.1) Linear diffusers
[38] Concerning the linear diffusers, Mr. Lopes in his affidavit sworn October 23, 2020 attached the invoice of Gino DiTommaso dated August 21, 2017. This invoice is proof that five linear diffuser installation, office ductwork and thermostat wire rough-in work was done from August 4 to August 18, 2017. The charge to Multitech for this work was $3,200. Mr. Lopes stated that he passed this cost on to GJ less the cost of the square diffusers specified in the contract, $476, producing a total of $2,724. There was no corroboration of the alleged cost of the square diffusers, a fact that was pointed out by Mr. Gulamali. Given that absence, I am not prepared to allow the entirety of this claim. I will allow just over half the claim, namely the amount of $1,500 plus HST.
a.2) Kitchen valance
[39] Concerning the kitchen valance, Mr. Lopes in his October 23, 2020 affidavit stated that this item pertained to the construction of the cabinet extension around the electrical box in the kitchen. He said that this item, $300 plus HST, concerned extra “supplies” and work that was done by his shop. There was no corroboration. But the item is modest, and I will allow it.
a.3) Crown molding
[40] Concerning the crown molding, Mr. Lopes in his October 23, 2020 affidavit stated that this item concerned the supply and installation of crown molding in the kitchen. He attached an undated invoice from a supplier that showed the cost of the crown molding material, namely $23 per piece. Mr. Lopes stated he used two pieces and charged the material costs plus labour and a markup to produce the charge of $398 plus HST. Again, despite the paucity of corroboration, I will allow this item as it is modest.
a.4) Kitchen ENN extension and countertop
[41] Concerning the kitchen ENN extension and countertop, this item is broken into two parts in the December 14, 2017 invoice - $1,550 for the ENN extension and $600 for the countertop. Mr. Lopes in his October 23, 2020 affidavit stated that the ENN extension concerned the building of additional cupboards for the additional countertop. He stated that the charge included material costs and labour, and he went into detail as to how he created the charge. There was no corroboration. As a result, I will allow only half this charge, namely $775 plus HST.
[42] Concerning the additional countertop, Mr. Lopes produced an invoice for the supply and installation of the countertop dated December 20, 2017 showing a total of $585 plus HST. As a result, I am prepared to allow the entirety of this charge, namely $600 plus HST. The total of the two is $775 + $600 = $1,375 plus HST.
a.5) French door
[43] Concerning the French door, Mr. Lopes in his October 23, 2020 affidavit produced an invoice from Central Fairbank Lumber dated August 30, 2017 showing that the French door cost Multitech $598.70 plus HST. Mr. Lopes stated that he passed this cost along to GJ plus a markup for a total cost stated in the December 14, 2017 invoice of $811.57.
[44] In his affidavit, Mr. Lopes reduced this charge by $50 acknowledging that he had not accounted for the specified packet door in the contract drawings. There was no corroboration for this discount. As a result, I am not prepared to allow the entirety of this claim. I will allow about ¾ of the original claim, namely $600 plus HST.
a.6) Electrical work – rough-in wires and install 5 LED and 5 dimmers
[45] Concerning this item, Mr. Lopes in his October 23, 2020 affidavit produced an invoice from Nielectric Ltd. dated December 11, 2017 which showed that this work was done for a charge to Multitech of $450 plus HST. Mr. Lopes stated that he passed this cost along to GJ plus a markup. I find that this item has been proven in full, namely $540 plus HST.
a.7) ESA permit
[46] Only Mr. Lopes’ affidavit sworn September 1, 2020 refers to this item in the December 14, 2017 invoice and describes it as an extra. There is no reference to this item in Mr. Lopes’ October 23, 2020 affidavit. In cross-examination, Mr. Lopes explained this item as pertaining to the work of getting an electrical permit for the panel in the exterior corridor connecting the electrical system in the unit to the main building system. There is no explanation or corroboration of the quantum of this item. Nevertheless, I will allow something as this is admitted extra work. I will allow half the claim at $380 plus HST.
[47] In conclusion, for the above reasons, I find that Multitech is entitled to the following amount concerning the seven disputed extras: ($1,500 + $300 + $398 + $1,375 + $600 + $540 + $380) x 1.13 (HST) = $5,755.09.
b) Is GJ entitled to the 10% discount of the contract price due to delay?
[48] The contract contains the following clause that was inserted by Mr. Gulamali: “We assure that the work will be completed no later than August 31st . If delayed for one wk than we will refund 10% of the contract price.” That 10% is $6,780. It is also undisputed that the completion of Multitech’s work was delayed well past one week after August 31, 2017. GJ submits that this clause, therefore, applies and should be enforced. It has the onus of proving that position.
[49] Multitech challenges the enforceability of this clause. Mr. Cozzi argued that the clause is a penalty clause and should not be enforced. There is an established doctrine that the courts will not enforce contract clauses that impose penalties on parties, as this is viewed as an inappropriate usurpation by the parties of the role of the courts in determining compensatory damages that flow from contract breach; see H. F. Clarke Limited v. Thermidaire Corp., [1976] S.C.R. 319 (S.C.C.) at paragraph 27. The courts, however, will enforce contract clauses that genuinely pre-estimate and pre-establish damages that flow from contract breaches. But there must be evidence that the parties at the time of the contract made a genuine effort to pre-estimate the contract damages; see Clarke, op. cit., paragraphs 27 and 28.
[50] I have no hesitation in finding that the above noted clause in the contract in question is a penalty clause. It seems so on its face. There is no effort made in the clause to tie the contract discount to any measure of delay damage suffered by GJ. Mr. Shields argued that this clause was a normal “liquidated damages” clause. I do not agree. The usual liquidated damages clause in construction contracts links the specified damage to a measure of time, such as days. This creates at least the foundation for the argument that the parties tried to pre-estimate the damage created by the delay. There is no such effort made in the subject clause. According to its words, the same 10% discount applies regardless of whether the delay is 1 day or 100 days. Furthermore, the clause makes no effort to tie the discount to the party at fault for the delay. It imposes on Multitech an immediate and dire consequence for any delay caused by either party, which is entirely unreasonable.
[51] The evidence at the trial bolsters this view. Mr. Gulamali stated that he inserted this clause into the contract. After the subterfuge I discussed earlier came to light in his cross-examination, Mr. Gulamali admitted that he wanted the project done by August 31, 2017 because he had promised the purchaser of Unit 300 access to that unit by August 31, 2017 to start its own improvements. It is clear from this evidence that Mr. Gulamali inserted the 10% discount clause into the contract as a punishment to Multitech to goad it to finish its work by August 31, 2017 so that GJ could move out of Unit 300 by that date. This is the essence of a penalty clause that the courts will not enforce. I also note that there was no evidence at the trial about the parties making any effort to pre-estimate contract damages by inserting this clause. I, therefore, have decided not to enforce this clause.
[52] The law requires that I then turn to the question as to whether GJ has established a claim for delay damages without the clause. I find that it has not.
[53] First, there is the question of liability. I have already discussed at some length my view as to whether Multitech was delayed by GJ for three weeks in July, 2017 on account of work GJ asked Multitech to do on other units GJ was considering buying and did buy. For the reasons stated earlier, I believe Mr. Lopes’ evidence over that of Mr. Gulamali and find that GJ did so delay Multitech. This explains the delay of the Multitech work to the date Multitech rendered its September 21, 2017 invoice for the contract price alleging the work was “completed.”
[54] There is little doubt that the work was not complete by September 21, 2017. But the cause of that lack of completion is unclear. That there were Multitech deficiencies was admitted by Mr. Lopes; but he said in his first affidavit that these were “minor deficiencies no more than typical in the industry.” Mr. Gulamali in his September 25, 2017 email to Multitech sent in response to the Mulitech contract price invoice of September 21, 2017 listed 8 items of unfinished work and enclosed photographs. In his affidavit of September 14, 2020 Mr. Gulamali described these items as “deficiencies”; but on closer examination it is evident that only about two of the items may be called deficiencies. In any event, as stated above, I prefer the evidence of Mr. Lopes as I found him to be more credible.
[55] Furthermore, as discussed above, there was also the extra work that was caused by GJ. I note that this extra work continued past September 21, 2017. For instance, the Nielectric invoice is dated December 11, 2017. The Central Fairbanks Lumber invoice for the French door is dated August 30, 2017 but also states the following: “lead time: 4 – 6 weeks.” The WI Marble City countertop invoice is dated December 20, 2017. I note also that there may have been other extra work that Multitech did not claim. Multitech presented evidence in this regard, and all I will say is that this evidence suggests that other extra work may have been done after September 21, 2017. There was no expert or other evidence from GJ analyzing these events in detail and assigning liability for the delay. Therefore, I am unable to make a finding of liability for the delay.
[56] Second, there is the question of damages. If I had been able to find Multitech liable for any of the delay, there was no evidence from GJ as to its damages. This was admitted by Mr. Shields in argument. The most Mr. Gulamali stated on this subject was in his September 14, 2017 affidavit when he stated that he had to wait until November 15, 2017 to start bringing in clients. But he gave no evidence as to the damages, if any, this caused GJ.
[57] I, therefore, find that GJ is not entitled to the 10% discount or any damages for the delay.
VI. CONCLUSION
[58] In conclusion, I rule that GJ must pay Multitech the following concerning the issues in dispute: $5,755.09 + $6,780 = $12,535.09. I find that Multitech has a lien judgment and a breach of contract personal judgment against GJ in that amount.
[59] As to costs, I required that the parties deliver cost outlines for the reference including the trial hearing. They did so on November19 and 20, 2020. The Multitech costs outline shows a partial indemnity amount of $20,566 and a full indemnity amount of $29,380. The GJ costs outline shows a partial indemnity amount of $42,090.36.
[60] If the parties cannot otherwise agree on costs and interest, Multitech must deliver written submissions on costs and interest of no more than two (2) pages on or January 15, 2021. GJ must must deliver written submissions on costs and interest of no more than two (2) pages on or before January 26, 2021. Any reply written submissions on costs and interest cannot be longer than one (1) page and must be delivered on or before January 29, 2021.
[61] These written submissions must in addition to any issues the parties may wish to raise, deal with the following issues:
• the costs for the reference that should be awarded, and the basis for doing so;
• the settlement discussions between the parties, if any; and
• the prejudgment and post-judgment interests that should be applied, the date or dates from which the interest should run, and the per diem amount.
[62] If the parties are unable to agree on the form of my final report, an attendance may be required to settle the report.
Released: January 4, 2021 __________________________
MASTER C. WIEBE
COURT FILE NO.: CV-18-595996
DATE: January 4, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
In the matter of the Construction Act, R.S.O. 1990, c. C.30
BETWEEN:
Multitech Contracting 2000 Inc.
Plaintiff
- and -
G. J. Investments Inc.
Defendants
REASONS FOR JUDGMENT
Master C. Wiebe
Released: January 4, 2021