COURT FILE NO.: CV-16-566839

DATE: 2021 11 12

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended

BETWEEN:

KEVIN REID

K. Reid, in person

Plaintiff / Defendant by counterclaim

• and -

YI XIAO, NANSHENG XIE and COMPUTERSHARE TRUST COMPANY OF CANADA

R. Hosseini and J. Kasozi, for the defendants / plaintiffs by counterclaim, Yi Xiao and Nansheng Xie

Defendants / Plaintiffs by counterclaim

HEARD: February 23-26 and March 3-4, 2021

REASONS FOR JUDGMENT

Associate Justice Todd Robinson

I. OVERVIEW...................................................................................................................... 2

II. Issues............................................................................................................................... 4

III. Analysis......................................................................................................................... 4

a. Was the base contract scope of work incomplete?..................................................... 4

b. Are there any legally valid and recoverable extras?.................................................. 5

i. Does non-compliance with the variations clause bar the extras claim?.............. 7

ii. Was Arben Shpati authorized to direct or approve changes and extras?............. 8

iii. Did the Owners’ authorize and agree to claimed extras?.................................... 9

c. Was any of the work deficient?................................................................................. 22

i. What weight should be given to the expert opinions?......................................... 22

ii. Is there other evidence supporting the alleged deficiencies?............................. 25

d. What credits are owed for incomplete work?........................................................... 29

e. What amount is owed under the contract?............................................................... 32

f. Who breached the contract?..................................................................................... 33

g. Is Mr. Reid’s lien timely?.......................................................................................... 34

IV. Conclusion................................................................................................................ 34

I. OVERVIEW

[1] Yi (Nancy) Xiao and Nansheng (Nelson) Xie (together, the “Owners”), are the owners of the property at 3 Kamloops Drive, North York. When purchasing it, they planned to convert the bungalow on the property into a two-storey house. They engaged a designer, Arben Shpati (consistently referred to as “the architect” during trial), to design a new home and prepare architectural design and permit drawings. Ms. Xiao then reached out to potential contractors about doing the construction.

[2] Kevin Reid operates a general contracting business known as Pearly Gate Homes, which is a sole proprietorship. Ms. Xiao initially contacted Mr. Reid about the renovation project through Jessie Lin, who is Mr. Reid’s bookkeeper and assists with his business administration. Mr. Reid and Ms. Xiao spoke. Mr. Reid’s evidence is that, during the initial conversation, he discussed services he may be able to assist with. It is undisputed that Mr. Reid told Ms. Xiao that he was a specialist in structural framing and carpentry with over 30 years of experience. His own evidence at trial was that he has been framing since 1984, with expertise in rough framing of new homes and additions.

[3] Discussions followed between Mr. Reid and Ms. Xiao focused on having Mr. Reid performing the necessary demolition work and framing the new house structure using existing foundations and footings. Mr. Reid would not be performing the entire renovation. Different trades were being engaged by the Owners for other aspects of the renovation work.

[4] Mr. Reid’s evidence is that negotiations with him were not only for the Owners’ renovation project, but also for two additional renovation projects for their friends. One was for Binrong (Binna) He, who owned a nearby property on an adjacent street. The other was for Yang Jian Qiao, whose property was some distance away. Arben Shpati had been engaged to prepare designs for all three projects. The renovation designs for Ms. He’s property were very similar to those for the Owners. Kevin Reid and Jessie Lin met with all of the owners in April 2016 to discuss the three projects. From Mr. Reid’s perspective, he was being asked to do the demolition, framing, some foundation, and roofing work for all three projects as essentially one deal (albeit with separate contracts), starting with 3 Kamloops Drive. All three projects were to be completed within a roughly six month window.

[5] The form of contract between Kevin Reid and the Owners was prepared by Mr. Reid and provided to Yi Xiao. It was prepared as a contract between Pearly Gate Homes and Nansheng Xie (although Mr. Xie was not involved in negotiations). Ms. Xiao did not request any changes to the draft agreement, other than price. A total fixed price contract of $182,500, including HST, was agreed, to be paid in four installments: three equal payments of 30% due prior to commencement, after completion of all demolition, and after completion of all framing, and the final 10% payable upon “release” of the framing inspection. The contract was formally signed by Mr. Reid and Ms. Xiao (above the name of her husband, Nansheng Xie), and witnessed by Binrong He.

[6] Although Nansheng Xie did not sign the contract himself and Yi Xiao is not named in the contract as a party, it was undisputed in the course of litigation and at trial that the contract was between Kevin Reid and both Owners. In their trial evidence, both Mr. Xie and Ms. Xiao acknowledge that they (as opposed to one or the other of them) entered into the contract.

[7] The contract stipulated a commencement date of May 16, 2016 and completion date of July 10, 2016, with a caveat clause that completion must allow for changes, unforeseen repairs or revisions, and weather. The contract also includes a three-page scope of work, covering specific items of work to be performed in the basement, main floor, second floor, and roof, with notes addressing other inclusions and exclusions. Pearly Gate Homes’ terms and conditions were further appended to the contract.

[8] Nansheng Xie oversaw progress of the construction himself. Evidence supports that he attended the site most days during the course of construction. It is unclear from the evidence if the Owners originally had a project manager that was terminated. Regardless, Mr. Reid’s work was overseen by Mr. Xie. Mr. Reid’s position and evidence is that the designer, Arben Shpati, was also involved in oversight, but that is disputed by the Owners.

[9] Work at the Owners’ property proceeded from May 2016 until November 2016. There were a number of delays due to structural and other matters arising during construction. Disputes between Mr. Reid and the Owners regarding deficiencies and unpaid extras had come to a head by September 2016. By late November 2016, Mr. Reid continued to demand payment of the final 10% of the base contract price and commitment by the Owners to sit down to discuss extras and credits, else he would be putting a lien on their house.

[10] Kevin Reid prepared and sent a final invoice for $67,794.85. When it was not paid, he registered a claim for lien against title to the property. This lien action was then commenced, seeking payment on the lien and damages for breach of contract. The Owners counterclaimed for costs of remediating construction deficiencies and aggravated damages. They did not pursue their claim for aggravated damages at trial.

[11] For the reasons that follow, I find that Kevin Reid has proven his entitlement to a lien, although has only established entitlement to a few of his claimed extras. I further find that the Owners have failed to make out their deficiency claim, but are entitled to greater credits for incomplete work and changes than provided by Mr. Reid. The Owners breached the contract by non-payment to Mr. Reid, whose lien is timely. Based on my determinations, I thereby find that Kevin Reid is entitled to a lien in the amount of $8,277.97, including HST, and judgment for the same amount, with pre-judgment interest pursuant to the Courts of Justice Act, RSO 1990, c C.43.

II. Issues

[12] Several issues are in dispute, namely:

(a) What work in the base contract scope was incomplete?

(b) Does non-compliance with a contractual variations clause bar Kevin Reid’s extras claim?

(c) Was the Owners’ designer, Arben Shpati, authorized to direct or approve changes and extras?

(d) Were the extras claimed by Kevin Reid authorized and agreed?

(e) What is the recoverable value of proven extras?

(f) Was any of Kevin Reid’s work deficient?

(g) To what credits are the Owners’ entitled for admittedly or allegedly incomplete work?

(h) Who breached the contract?

(i) Is Kevin Reid’s lien timely?

III. Analysis

a. What work in the base contract scope was incomplete?

[13] Kevin Reid has the evidentiary onus of proving the value of services and materials he supplied and the unpaid contract work he completed.

[14] Although evidence was tendered on the pre-contract negotiations, the parties do not seriously dispute the agreed base contract scope of work or the base fixed contract price of $182,500, including HST. The contract, which was drafted by Kevin Reid, also includes provisions in the scope of work details (under the “Note” heading) that all work is to be completed as per the City-approved permit drawings.

[15] Mr. Reid alleges that the contract was almost entirely complete, with credits given for admittedly incomplete work. The Owners disagree, taking the position that work invoiced by Mr. Reid as being finished was not actually complete and that Mr. Reid failed to complete construction in accordance with the approved permit drawings.

[16] Issues in an action are defined by the pleadings. Incomplete work is not a defence pleaded by the Owners in their statement of defence and counterclaim. Rather, in defence of Mr. Reid’s claim, they have only denied approval of any extras above the fixed contract price and raised construction deficiencies. The Owners’ set-off and counterclaim is specifically in respect of remediation costs for deficiencies, which are particularized in a schedule to the pleading (a chart prepared by one of the Owners’ experts, Nelson Pacheco). Nevertheless, while incomplete work and deficient work are distinct (the latter generally being completed work with defects in workmanship or materials), Mr. Reid did not argue at trial that I should not consider alleged incomplete work. Also, the chart appended to the statement of defence and counterclaim does include instances of incomplete, as opposed to deficient, work.

[17] Nansheng Xie provided essentially all of the Owners’ evidence-in-chief on incomplete and deficient work by Mr. Reid. He gave specific evidence on only one instance of incomplete (as opposed to deficient) work not admitted by Mr. Reid, namely failure to complete gas proofing of the garage. All other workmanship complaints fall into one of two categories: (i) incomplete work acknowledged by Mr. Reid, for which only the credit amount is disputed, or (ii) workmanship issues more properly viewed as deficiencies in completed work. Both of those categories are separately addressed later in these reasons.

[18] With respect to gas proofing, the contract does provide that Mr. Reid was required to gas proof the garage. The totality of Mr. Xie’s evidence is two sentences. He states in his affidavit, “According to the Agreement, Reid was supposed to gas proof the garage. However, when we later installed the insulation in the garage, we found out that garage was not gas proofed.” There was no viva voce evidence or argument on the matter. In particular, no evidence was tendered on where the gas proofing was supposed to be performed in the permit drawings, where it is missing, or how and when the Owners discovered it was missing. Since the Owners submit they were not sophisticated in construction, Mr. Xie’s competency as a witness to observe and appreciate that gas proofing had or had not been performed is questionable.

[19] At trial, a defendant denying that work was completed ought to tender some evidence to support its position beyond self-serving and general denials. Nevertheless, Mr. Reid has the evidentiary onus of proving that he completed his contract work and the value of unpaid services and materials. Completion of gas proofing was challenged. Mr. Reid had the opportunity to cross-examine Mr. Xie on his affidavit statement or tender other evidence that the work was, in fact, complete. He did neither. There is no evidence supporting that the required gas proofing was performed.

[20] I thereby find that Mr. Reid did not complete gas proofing, but otherwise completed his contractual scope of work, except for admittedly incomplete work for which appropriate credits remain disputed.

b. Are there any legally valid and recoverable extras?

[21] Kevin Reid and the Owners entered into a fixed price contract. Mr. Reid was accordingly obliged to perform the entire contract scope of work irrespective of the ultimate cost to him of the work involved, in return for which he was only entitled to receive the agreed price, and no more: Jo/Vi Ltd. v. Balmoral Developments Inc., 2014 ONSC 6803 (Div Ct) at para. 22(c). That does not, however, preclude Mr. Reid from seeking compensation for extra work performed outside the scope of the construction contract.

[22] Extra work that entitles a contractor to additional payment must be substantially different than the work contemplated by the contract. Essentially, in a fixed price contract, it must be work outside the scope of the existing contract that is not expressly or impliedly included in the work covered by the agreed fixed price: King Road Paving v. Plati, 2017 ONSC 557 at para. 97.

[23] Kevin Reid’s final invoice includes eighteen alleged extras to the contract. Only seventeen of them were pursued at trial. The Owners deny agreeing to or approving any of them. Mr. Reid has the onus of proving his entitlement to payment for those claimed extras. They are as follows (generally in descending order of value):

(a) reframing work required for larger windows;

(b) a new foundation wall;

(c) full replacement of the flat roof at the end of the job;

(d) construction of new perimeter walls;

(e) removing all wood strapping and concrete nails from existing block walls (related to the new perimeter walls);

(f) removal and disposal of materials left by other trades from drain-related work;

(g) revisions to a chimney flue and fireplace;

(h) repairs to the cold cellar;

(i) repairing the existing hardwood flooring instead of removing it;

(j) removing, sorting, and disposing of household furniture and appliances;

(k) supplying three angle irons;

(l) removal and disposal of materials left by a plumber;

(m) an upgraded skylight;

(n) disposal of a chimney stack;

(o) ply post upgrades;

(p) upgrades to a bathroom wall; and

(q) additional HVAC work.

[24] I have first considered the Owners’ argument that Mr. Reid’s extras claim is barred by non-compliance with a contract term setting out a required process for changes. I find that the clause was varied by the parties’ conduct to permit extras without any formal written authorization.

[25] I have next considered Kevin Reid’s argument that he received approvals for extras from the Owners’ designer, Arben Shpati. Mr. Reid submits that Mr. Shpati was authorized to direct changes and approve extras. I find that Arben Shpati did not have any actual or ostensible authority to direct or approve extras on behalf of the Owners. Authorization and approval of extras was required from the Owners themselves.

[26] I have finally considered whether the extras claimed constitute valid and recoverable extras, namely whether they were authorized and agreed by the Owners, whether the evidence supports that they were performed, and whether the amounts claimed have been proven. I find that some, but not all, of Mr. Reid’s claimed extras were agreed by the Owners and are properly recoverable.

i. Does non-compliance with the variations clause bar the extras claim?

[27] Among the terms and conditions appended to the contract between Kevin Reid and the Owners, there is a “variations” clause dealing with the process for requesting changes to the contract. It states as follows:

2. VARIATIONS

This Contract may be varied by changes to the Contract Work (including additions, omissions or replacements) when:

• The party requiring the variation gives the other party a written notice describing the variation

• The Contractor provides a written estimate of the value of the variation and when the payment or credit is to be made

• The variation notice is signed by both parties.

[28] The Owners submit that a contractor who has signed a contract requiring change orders as a precondition to extras should know not to do extra work unless it has a change order: Dunhill Construction Ltd. v. Ledcor Industries Ltd., [1993] BCJ No 1443 (SC) at para. 61. I agree that proposition is generally correct. Where contract terms deal with the process for making changes to a contractor’s work, those terms are the starting point for an analysis of the contactor’s entitlement to additional payment.

[29] The Owners argue that Kevin Reid’s entitlement to extras is limited to those that complied with the variations term, which they say is none of the extras. The Owners rely on Mr. Reid’s decades of construction experience and testimony that the primary purpose of the variations clauses is for the protection of the contractor (although, in fairness, Mr. Reid also testified that he viewed it as benefitting both parties).

[30] Nansheng Xie’s evidence is that he attended the construction site almost every day, and that Mr. Reid never asked for any approvals or notified him about any variations or extra work. Having failed to do so, and having further failed to provide any written notice or prepare any written “variation notice”, the Owners argue that Mr. Reid is not entitled to payment for any of his claimed extras.

[31] It is undisputed that the variations clause was not complied with. Only one formal change order request was issued by Mr. Reid, and only after there was an apparent dispute between the parties over extras. However, non-compliance with the variations term does not necessarily preclude Mr. Reid’s extras claims. Parties to a construction contract may, by their conduct, vary terms of a contract requiring that extra costs be authorized in writing and, by doing so, cannot then rely upon the construction contract’s strict provisions to escape liability to pay for the additional costs authorized and incurred as a result of such conduct: Colautti Construction Ltd. v. Ottawa (City) (1984), 1984 CanLII 1969 (ON CA), 46 OR (2d) 236 (CA).

[32] Changes were initiated by both Kevin Reid and the Owners during construction. Neither insisted on compliance with the variations clause. The Owners argue that any request they made for Mr. Reid to perform extra work is not itself a waiver of any contractual terms. I agree that a request alone does not support waiver. However, where an owner has acquiesced in the provision of an extra and, as a reasonable person, must have realized the extra work would involve extra expense, the owner may be found to have made an implied promise to pay for it, irrespective of contract terms. It is at that point when waiver of strict compliance with the contract terms arises.

[33] As discussed in greater detail below, there are instances where the Owners did expressly request or agree to extras for which no formal change order was signed, and for which they expected the work would be performed. Mr. Reid complied. In other instances, I am satisfied that the Owners were aware of additional work that was required and reasonably constituted extras, knew that Mr. Reid was performing necessary work at additional cost, and reasonably ought to have expected they would have to pay for it.

[34] I find that, by their conduct, Mr. Reid and the Owners varied the contract to allow extras that were not formally authorized in writing. The contract variations clause accordingly does not itself bar Mr. Reid’s claim for extras.

ii. Was Arben Shpati authorized to direct or approve changes and extras?

[35] Kevin Reid gave evidence that a number of claimed extras were changes discussed with or directed by Arben Shpati. He testified that he understood Mr. Shpati’s role on the project was to “hold the Owners’ hand” and help them through the project. Mr. Reid further testified that all his instructions on major structural issues (and some cosmetic issues) came from Mr. Shpati. There is some documentary support for Mr. Reid’s position. The permit drawings refer to Arben Shpati as the “project manager”. Also, in an email dated August 1, 2016 sent to Yi Xiao, Mr. Reid’s position was that all changes had been authorized by Arben Shpati. Mr. Reid stated, “Any revisions made by Pearly Gate homes were not only granted and authorized by Arben [Shpati] but were made in order to be more time efficient and cost effective.” Mr. Reid also pointed to a text message exchange with Mr. Shpati supporting that at least some direction was given by Mr. Sphati on window openings.

[36] Nansheng Xie’s evidence on Arben Shpati’s role is entirely at odds with Mr. Reid’s evidence. Mr. Xie’s testified that Mr. Shpati had no authority to act on behalf of the Owners to direct any changes. He stated expressly that Mr. Shpati did not have any final say without the Owners’ consent. Mr. Xie denied telling Mr. Reid to follow instructions given by Mr. Shpati, and further denied that Mr. Shpati had directed or approved any changes all. Mr. Xie also testified that Arben Sphati was not engaged to act as any kind of construction supervisor for the project. Mr. Xie acknowledged that contractors may have discussed Mr. Shpati’s drawings with him on their own, but also confirmed that he would have to be involved in any changes to the drawings. Read-ins about Arben Shpati put forward by Mr. Reid from Nansheng Xie’s examination for discovery are consistent with this trial evidence.

[37] Arben Shpati was not called as a witness by either side. Had he been called, Mr. Shpati would have been a material witness on many of the disputed issues. Kevin Reid did include in his book of documents a written statement dated March 3, 2017 purportedly signed by Mr. Shpati. However, its admissibility was challenged and it was not authenticated, so I have given it no weight.

[38] There is evidence supporting that Kevin Reid was directed to speak with Arben Shpati about certain project issues. However, being directed to speak to Mr. Shpati on a matter or consulting with him about design errors and omissions or design intent is not the same as Mr. Shpati having authority to direct Mr. Reid without the need for further approval by the Owners.

[39] I find that Arben Shpati did not have actual or ostensible authority to direct or approve extras to the contract scope of work. I accept that Arben Shpati may have agreed with Mr. Reid that changes were necessary, and may have made recommendations about changes. I also accept that communicating with Mr. Shpati was generally quicker and more efficient for Mr. Reid, as he testified. However, Mr. Shpati was not a party to the contract. There is no evidence of any representation or suggestion by the Owners from which to find it was reasonable for Mr. Reid to believe that Mr. Shpati had authority to bind them.

[40] Mr. Reid accordingly cannot rely on directions or authorizations given by Arben Shpati. It was incumbent on Mr. Reid to obtain authorization and approval for changes and extras from the Owners themselves.

iii. Did the Owners’ authorize and agree to claimed extras?

[41] A contractor who performs work or supplies materials not called for by the contract, and who does so without instructions or consent of the owner (either express or implied), is not entitled to charge for that extra work: King Road Paving v. Plati, supra at para. 96. What amounts to instructions from the owner will depend on the circumstances relating to each item of work, but an owner may be found to impliedly assent or acquiesce to the extra by conduct such as knowingly permitting the contractor to perform work without giving definite instructions: Osmi Homes Inc. v. Kumar, 2020 ONSC 2712 (Master) at para. 93(d).

[42] Where the parties, by their conduct, vary the terms of the contract requiring that extra costs be authorized in writing, the cost of extra work is only recoverable if three requirements are met: (a) that the base contract scope of work changed sufficiently such that the contract price no longer applies to the services and materials actually supplied, (b) that there was an express or implied agreement for supply of services and materials claimed as extras, and (c) in the absence of agreement on a price for the extras, that the value of extras has been proven on a quantum meruit basis: Osmi Homes Inc. v. Kumar, 2020 ONSC 2712 (Master) at para. 94.

1. Lack of documentary support for extras

[43] Kevin Reid tendered limited documentation to substantiate his extras claims. Documentation supporting the cost of work to Mr. Reid was only provided for a new foundation wall. Otherwise, Mr. Reid relies on his own testimony and the testimony of his concrete subcontractor, Paulo Gullo. Although Mr. Reid did not tender any evidence-in-chief on several extras, he was asked about some during cross-examination. I have also considered that testimony.

[44] Prior to trial, Mr. Reid served an affidavit from his demolition foreman and handyman, Kenneth Down. When Mr. Down was not ultimately called at trial for cross-examination, Mr. Reid confirmed that he would not be relying on the affidavit. I have accordingly not considered it. Since Mr. Reid did not produce Mr. Down for cross-examination per my prior consent order that all affiants be produced by the party calling them, I would not have considered the affidavit in any event.

[45] Mr. Reid was cross-examined on the limited substantiating documentary evidence for his extras. He testified that the figures in his final invoice were derived from documents such as labour records and material costs, which were in a file with his bookkeeper. He acknowledged that he knew the Owners dispute his extras claim, and that the documents had nevertheless not been produced in the litigation. At one point, Mr. Reid explained that he had not been asked for them.

[46] Documentary discovery in construction lien actions first requires leave of the court. Although not expressly stated, leave to exchange affidavit of documents in this action was granted by Master Albert in her order dated December 13, 2017, in which she fixed a deadline for the parties to exchange affidavits of documents and Schedule “A” productions, which the parties exchanged.

[47] The Rules of Civil Procedure apply to lien actions, except to the extent that they are inconsistent with the Construction Act. Where leave for documentary discovery is granted, unless the court orders otherwise, the Rules of Civil Procedure require that a party disclose all relevant documents that are or were in its possession, control or power (Rule 30.03), with an ongoing obligation for production of relevant documents (Rule 30.07), and a range of sanctions and impacts from failing to disclose or produce relevant documents (Rule 30.08).

[48] Once leave for documentary discovery was granted, Mr. Reid had an ongoing obligation to produce all relevant documents that are or were in his possession, control, or power. It is evident that he did not do so. It does not matter whether he was asked to produce them. He bears the evidentiary burden of proving his claim. If additional substantiating documentation exists, it was not produced and Mr. Reid did not seek leave to tender it at trial.

[49] Accuracy and reliability of Mr. Reid‘s final invoice, which is the first written notice of a claim for many of the extras, is a concern for me. It includes a $780 charge for extra roof work. That extra work was included in the lump sum change order request previously sent to the Owners (and not signed back). Mr. Reid confirmed during his cross-examination that the extra was improperly charged. He gave evidence that the work was discussed, but never ultimately performed. Although a relatively small item in the overall extras claim, Mr. Reid’s admission that this work was not performed, yet was included in both his change request and final invoice, has underscored the need for clear substantiating evidence – documentary or oral – for extras.

[50] Mr. Reid failed to tender any evidence on the scope of work actually performed, if any, or value of claimed extras for the cold cellar repair, a ply post upgrade, bathroom upgrades, and extra HVAC work. He made closing submissions on them, but the facts in his submissions were not tendered through any witness. Since Mr. Reid has the evidentiary onus of proving his claimed extras, that lack of evidence is fatal. I find that those four extras have not been proven, and thereby are not recoverable.

2. Communications about extras

[51] Since Arben Shpati did not have authority to direct or approve changes in Mr. Reid’s work, extras must have been authorized and agreed by the Owners to be recoverable. If there was no express or implied agreement to the claimed extras, it becomes unnecessary to address whether Mr. Reid has proven that the work was performed or the value of that work.

[52] There is little evidence of express approval of extras by the Owners. There is also little in writing about changes and extras until after they had already been completed. Mr. Reid relies heavily on email exchanges and meetings with the Owners in which they agreed to meet at the end of the project to resolve extras and credits. I have considered that evidence, and find that the Owners did not specifically acknowledge or approve any of the claimed extras during the email exchanges and meetings relied upon by Mr. Reid, as discussed below.

[53] Because the Owners adamantly deny approving any extras, it is helpful to set out the evidence on the parties’ express communications over changes and extras to the contract.

[54] The first written notice of extra work following execution of the contract appears to be an email from Jessie Lin to Yi Xiao dated May 25, 2016, written in Mandarin (with an English version in evidence as translated by Ms. Lin). That email provided notice of a 9-inch discrepancy between the second floor design drawings and the location of the foundation walls and stating, “The existing porch foundation wall is not far out enough to bear the second floor.” Mr. Reid testified that the original foundation did not line up with the existing garage, requiring a new foundation wall in order to support the load of the designed second floor addition.

[55] In that email, Ms. Lin advised that Kevin Reid was in discussions with Arben Shpati about a solution. A handwritten drawing by Mr. Reid was attached depicting the proposed “current plan” of moving the foundation wall out 9-inches. Evidence from Mr. Reid and Nansheng Xie is inconsistent on whether there was any agreement on-site for that work to proceed, although it did ultimately proceed.

[56] Ms. Lin next sent a further email to the Owners on May 28, 2016, again in Mandarin (with an English version in evidence as translated by Ms. Lin). In the email, Ms. Lin advised that the garage side of the house was over 2-inches higher than the other side. Ms. Lin goes on to state that Kevin Reid would be responsible for rectifying the issue and that Mr. Reid would assume the cost of rectification.

[57] The next written notice of extra work was on June 8, 2016. Jessie Lin sent a general email to the Owners, copied to Mr. Reid and Binrong He, in which she stated as follows:

By field (or oral) directive, we were directed to perform additional work. These works are not described in, or part of, the original plans and specifications, not [sic] is it in any way called for by the contract documents.

We proceeded to complete those works so as to minimize the cost of the work and any delay to the project that would have resulted had we not complied with those directives.

We will be pleased to review this matter with you at your convenience and will provide you with a detailed cost for those extra works as soon as we have it computed.

To help you in your planning, we submit this notice as required by our contract. We assure you that we will do everything we can to minimize those costs and the necessary contract time extension.

[58] This email, which did not specify any particular extras, was sent the day before a meeting at which the contract between Kevin Reid and Binrong He was signed for Mr. Reid to perform similar renovation work at Ms. He’s property. During that meeting, extras at 3 Kamloops Drive were discussed, although trial evidence was consistent that there was no resolution or agreement on any extras.

[59] During her testimony, Jessie Lin pointed to a text message exchange she had with Ms. Xiao in this period, which is almost entirely in Mandarin. Ms. Lin testified that Ms. Xiao knew that there had been extras and a verbal agreement for them. However, there is no translation of the texts and the specific text message identified by Ms. Lin was not put to Ms. Xiao during her cross-examination. In response to a question from me about Ms. Lin’s translation, she confirmed that Ms. Xiao was saying only that work had slowed down at the job site. I find no acknowledgment of extras in the text message.

[60] Mr. Reid first particularized his claimed extras and costs in a change order emailed by Jessie Lin on July 3, 2021. The covering email confirmed that some changes had already been completed while others remained ongoing. Nine changes were identified, several with details of the work. Costing for each individual extra was not provided. Only a lump sum change order price of $20,450 plus HST was given. Notably, on Mr. Reid’s final invoice, charges for the same work add to a higher amount, suggesting that Mr. Reid increased the claimed cost when issuing his final invoice.

[61] Yi Xiao responded to the change order by email to Jessie Lin on the same day. Ms. Lin confirmed during her testimony that she prepared the English translation of that email, which confirms that Ms. Xiao did not intend to sign the change order. As I previously noted, the change order was not signed back.

[62] A further meeting took place on July 4, 2016. Evidence from Kevin Reid, Jessie Lin, Nansheng Xie, Yi Xiao, and Binrong He was consistent that there was still no resolution on extras and credits at this meeting. The record supports and I find that Mr. Reid and the Owners agreed to discuss changes and credits after the project was completed. A subsequent email from Yi Xiao states (per Jessie Lin’s translation) that “we need more communication and understanding”. Ms. Lin responded with a proposal that Mr. Reid prepare a “complete breakdown” of all changes and extras before a meeting to review them, and that the Owners be afforded time to verify the changes with Arben Shpati, after which the extras would be discussed and concluded.

[63] A further email exchange occurred on August 1, 2016. Yi Xiao sent an email to Kevin Reid (copied to Jessie Lin) written in Mandarin. It outlined concerns with the project and outstanding framing work. It acknowledged that there were extras requested by the Owners, although pointing out that other extras were performed by Kevin Reid himself. Ms. Xiao disputed that the Owners should be solely responsible for all extras. In response, Mr. Reid provided details of various changes made during construction and invited the Owners to “sit down to negotiate and sign the extras”.

[64] A further email was sent by Kevin Reid to Yi Xiao on September 16, 2016, asking to “settle our account with you” and requesting a meeting the following week. Ms. Xiao confirmed she would arrange time the following week, but the Owners did not ultimately meet with Mr. Reid, despite further requests for meetings continuing until late November 2016.

[65] I find that the Owners did agree to meet to review Mr. Reid’s claimed extras and that Yi Xiao’s email dated August 1, 2016 acknowledged generally that there had been owner-requested changes. However, there is no specific acknowledgment that any of Mr. Reid’s claimed extras were agreed. An agreement to meet does not amount to acceptance or approval of the extras. Although Mr. Reid repeatedly pointed to the Owners’ failure to meet with him, as they had agreed they would do, I find no evidence of bad faith in their ultimate decision not to meet with him.

[66] I turn now to whether each of the remaining claimed extras are recoverable.

3. Window details and openings

[67] The contract required that Mr. Reid remove the existing windows and install all new windows and exterior doors. Several windows were increased in size from the existing windows. There is a dispute regarding whether Mr. Reid’s claim for extra framing work for the increased sizes of these windows is warranted.

[68] Mr. Reid testified that there were no details in the drawings on the windows or openings, such as a cross-section of window installation. He testified that the Owners told him they would get him a window schedule when it became available. Since it was not uncommon to start window work and get details to follow, he sought direction from Arben Shpati on window framing. Mr. Reid’s evidence is that Mr. Shpati directed him to keep the window openings the way they were. During cross-examination, Mr. Xie was asked if he was aware that Mr. Shpati had provided directions to Mr. Reid on how to prepare the first floor window openings. Mr. Xie confirmed he was not aware of that, but acknowledged that Mr. Reid may have had discussions with Mr. Shpati about it.

[69] Yi Xiao testified that, although approval of the window details was not received until May 25, 2016, Mr. Reid was already aware of the windows that would be increased in size when the contract was signed. She did acknowledge, though, that the window sizes are not in the permit drawings and that the window drawings provided to Mr. Reid on May 25, 2016 had not been previously provided because they were with the City awaiting approval.

[70] Overall, I do not find Mr. Reid’s evidence on having no details of the larger windows and receiving directions from Mr. Shpati to be unreliable or lacking in credibility. I accept it. Notably, a text message from August 12, 2016 from Mr. Reid to Arben Shpati is in evidence, in which Mr. Reid states, “FYI…. Nancy suddenly is unhappy with the main tloor [sic] windows. She doesn’t believe I followed your instructions.” Mr. Shpati’s responses do not question or deny that statement.

[71] I find that the Owners did not provide details or drawings of the windows until after the contract had been signed, construction had commenced, and Mr. Reid’s framing work was underway. There is no evidence supporting any notice to Mr. Reid that new windows would be larger than the existing windows, or that windows larger than the existing ones were included in the contract price. There is nothing in the contract about increased window sizes (referring only to removal of existing windows and installing new windows). There is also no evidence contradicting Mr. Reid’s evidence that the permit drawings did not depict the ultimate window sizing, as acknowledged by Ms. Xiao during her cross-examination.

[72] I find that the first notice to Mr. Reid that window sizing might be different than the existing windows was Yi Xiao’s email dated May 25, 2016, in which Ms. Xiao comments that she wants Mr. Reid to review “drawings about windows” that Nansheng Xie would provide. She notes specifically that there are “two big windows in the rear” that may affect (written as “infect”) the second floor extension. The window details were subsequently provided. I am satisfied that this constituted a change to Mr. Reid’s scope of work.

[73] Mr. Reid was contractually required to complete his entire contract scope of work within a period of eight weeks. He was not directed to delay framing work pending receipt of the window details. I find nothing in the evidence supporting a finding that Mr. Reid ought to have known that the window sizing was different. There is further nothing supporting a finding that it was unnecessary or unreasonable for Mr. Reid to have framed the windows when he did.

[74] Nansheng Xie knew or ought to have known that the new window sizing for some windows was larger. By his own evidence, Mr. Xie was on site most days managing the construction. Having elected to supervise construction himself, Mr. Xie reasonably ought to have been aware that the window openings were being prepared. He also reasonably ought to have known that additional work would be required to accommodate larger windows, particularly if new window sizes were not provided until after window framing was completed.

[75] In these circumstances, I do not find it unreasonable for Mr. Reid to have made inquiries of the designer/architect about his designs and proceed as he did. When he was made aware of the Owners’ decision to use larger windows, additional work was required to cut additional openings to facilitate the custom jams that were not previously detailed. No formal variation or change request was made by Mr. Reid. However, in all the circumstances, I find that the Owners impliedly agreed to the extra work, which was required because of their delay in providing window details for variances from the existing house.

[76] Although the extra work was impliedly agreed, and I am satisfied from the evidence and find that the work was performed, there was no agreement as to price. Kevin Reid’s evidence is that his labour and material costs were $9,000, but he has produced no backup for the cost of the work. The Owners argue that the actual cost should be no more $500.

[77] A plaintiff bears the onus of proving both their claimed loss and the quantum of associated damages based on credible evidence. Nevertheless, a trial judge is obliged “to do his or her best” to assess damages on available evidence, even where quantification is difficult: TMS Lighting Ltd. v KJS Transport Inc., 2014 ONCA 1 at para. 61. As I have previously held, though, determinations must still be supportable on some evidence. I cannot undertake an exercise that amounts to guesswork that may effectively vitiate Mr. Reid’s evidentiary onus of proving his damages: Schindler Elevator Corporation v. Walsh Construction Company of Canada, 2021 ONSC 283 (Master) at para. 337.

[78] Based on Mr. Reid’s testimony on the extent of work required, I accept that more than $500 in work was performed. However, I cannot accept Mr. Reid’s claimed extra cost of $9,360 without evidence of the labour hours and material costs involved. Nevertheless, it would be unfair to deny Mr. Reid any recovery in the circumstances. Mr. Reid’s evidence on the work supports that it was fairly involved, albeit that the number of affected windows is unclear from the evidence. Yi Xiao referred several times to three windows. “Doing my best” with the limited evidence I have been provided, I find and fix the value of extra work performed for the window reframing at $4,000.

4. New foundation wall

[79] The need for a new foundation wall to support the second storey addition is a seriously disputed issue between the parties. Kevin Reid claims $9,100 as an extra for the work.

[80] Kevin Reid testified that Nansheng Xie was aware of the foundation issue and gave on-site instructions to proceed with the work, which was performed by Mr. Reid’s porch subcontractor, Paulo Gullo. Mr. Reid arranged for the work on a time and materials basis. The Owners’ challenge the extra primarily on the basis that Mr. Reid gave them no option of having the foundation repaired for a lump sum price, rather than time and materials, or to explore other remedial options to address the structural concern. Mr. Reid acknowledged that he did not offer a fixed price option, but maintained that the actual costs of time and materials was better for the Owners than a fixed price with trade markup.

[81] During testimony, Nansheng Xie’s expressed his view that the foundation issue arose because Mr. Reid started work on the second floor, rather than starting work on the first floor. Mr. Xie’s gave an opinion that Mr. Reid would have discovered that the foundation walls were not in a straight line if Mr. Reid had started on first floor, and that the second floor could then have been redesigned and built on the existing foundations. By doing so, the second floor would not have been larger or bigger than the first floor.

[82] I have given no weight to Mr. Xie’s unqualified opinion on construction means, methods, and sequencing. Mr. Reid was contracted to build to the permit drawings, which set out the dimensions and location of the second floor. As I have noted, he had contractually agreed to complete all work within eight weeks. No expert opinion was tendered to support that Mr. Reid could reasonably have avoided the need for a new foundation wall if his construction methods or sequencing had been different. There is also no evidence supporting that the additional foundation wall was unnecessary to bear the load of the second floor addition, or that redesign of the second floor to accommodate the shorter foundation wall was a viable alternative.

[83] In these circumstances, I accept that the foundation issue was an unforeseen site condition giving rise to a material change in Mr. Reid’s scope of work. I further accept Mr. Reid’s evidence that remedial options were discussed with Arben Shpati.

[84] Mr. Xie’s unshaken evidence on cross-examination was that the 9-inch discrepancy and need for a new foundation wall was not brought to his attention, and that he was under the impression that the additional foundation work (which apparently took place over approximately two weeks) was being performed as part of the porch construction. Indeed, Paulo Gullo was the subcontractor responsible for constructing the porch and, based on trial evidence, the new foundation wall was constructed in proximity of the porch. Paulo Gullo’s invoice describes the work as “new foundation wall for front porch”.

[85] However, during a heated exchange between Kevin Reid and Nansheng Xie during Mr. Xie’s cross-examination, Mr. Xie acknowledged that Mr. Reid had spoken to him about the 9-inch discrepancy and that a meeting had taken place between Mr. Reid, Mr. Xie, and Arben Shpati. Mr. Xie further acknowledged that the new foundation wall was a solution that the Owners may have adopted had the issue been raised and discussed with them before it was constructed. Mr. Xie’s concern is really about the Owners being denied the opportunity to explore other options, such as redesigning the second floor, to avoid the need for a new foundation wall at all.

[86] I am satisfied and find that this is not a change for which Mr. Reid had the Owners’ agreement, either express or implied. I accept and find that Mr. Reid did give written notice to the Owners on May 25, 2016 (through an email sent by Jessie Lin to Yi Xiao) about the 9-inch discrepancy and his plan to move the existing porch foundation wall outward 9-inches. However, Mr. Reid ultimately gave the Owners no choice in the matter. The Owners do not appear to have responded to the proposal. Mr. Reid unilaterally determined the remedial solution to the unforeseen site condition (possibly in consultation with Arben Shpati), relayed his remedial plan to the Owners, and then executed it without confirming that the Owners agreed to it.

[87] Even if I am wrong, and Mr. Xie reasonably ought to have been aware that the foundation work he saw performed was the same work identified in Jessie Lin’s email dated May 25, 2016 (which could support implied agreement by acquiescence), there was evidently no agreement on price. I would nevertheless have found that Mr. Reid has not met his evidentiary onus of proving the value of the extra on a quantum meruit basis.

[88] Mr. Reid’s evidence is that his charge of $9,100 is the amount charged by Paulo Gullo with markup for profit. He testified that he arranged the work to be performed on a time and materials basis for the benefit of the Owners. However, Mr. Gullo’s invoice is a lump sum of $6,900 plus HST for all labour and materials for excavation, pouring new concrete footings, installation of concrete blocks, backfilling, and compacting. Mr. Reid’s billing to the Owners represents a 32% markup of that invoice. I do not view it as reasonable.

[89] During cross-examination on his invoice, Paulo Gullo confirmed that he had kept track of his time spent, but had not indicated on his invoice how much time was spent on each of the activities. Mr. Gullo could not confirm how much time was actually spent, and acknowledged that he had provided no pricing for materials or other items. He even acknowledged that he had no way of knowing if he had spent a reasonable amount of time performing the work. Mr. Reid did not otherwise tender that missing information and evidence.

[90] Granting relief on a quantum meruit basis requires that I be satisfied the amount is reasonable for the services and materials supplied. There is simply no evidence of the time required and actually spent to construct the new foundation wall, or the labour rates charged and material costs incurred. None of that relevant and material evidence has been tendered. Without it, I cannot find that the amount charged by Paulo Gullo was reasonable in all the circumstances.

[91] I am mindful that the need for a new foundation wall was an unforeseen site condition and was a material change to the contract. Here, however, the equities favour holding Mr. Reid more strictly to his evidentiary burden. The extra work was not required due to any act or omission of the Owners. There is no evidence of any urgency to proceeding with the work without prior consultation with the Owners. Mr. Reid drafted the contract, and ought to have been aware that he had specified a process for changes that, in his own testimony, was for his protection and the benefit of all parties. He nevertheless opted to proceed with substantive extra work without obtaining clear direction from the Owners to do so, in circumstances where he could readily have obtained the Owners’ agreement to proceed on either a time and materials basis or a fixed price basis.

[92] By proceeding without agreement and approval of the Owners, Mr. Reid assumed the risk of being unable to establish implied agreement or the reasonableness of the amounts charged, which I find he has failed to prove.

5. Replacement of flat roof

[93] Evidence supports that there were ongoing leaks with the roof installed by Kevin Reid. Leaks were repaired on three occasions before Mr. Reid ultimately acceded to the Owners’ request that the leaking roof be removed and redone. Mr. Reid claims an extra of $8,580 for the cost of what he characterizes as a completely unnecessary roof replacement.

[94] The Owners’ position is that the roof replacement is warranty work. I agree with the Owners. In any event, though, I am satisfied and find that Mr. Reid performed the work to appease the Owners, without any expectation of being compensated for it.

[95] During cross-examination, Mr. Reid was pointed to an admission during his examination for discovery that doing the work was “a submissive act of closure” and “appeasement gesture”. Significantly, Mr. Reid confirmed that, when performing the work, he had no expectation of being paid for it. He further admitted that the $8,500 charge could be removed. However, when asked during trial cross-examination to remove the charge, Mr. Reid maintained the claim.

[96] There is no evidentiary foundation for an express or implied agreement by the Owners that the roofing replacement was an extra to the contract. In circumstances of ongoing leaking, the Owners reasonably believed that the roof replacement was warranty work, not an extra. If Mr. Reid intended to claim the work as an extra, clear notice of that intention was required prior to commencing work. Since he admittedly performed the work without any expectation of payment, it is not a legally recoverable extra.

6. New perimeter wall / removing wood strapping and concrete nails

[97] Kevin Reid claims $7,800 as an extra for the cost of supplying and installing a new, insulated perimeter wall. The contract required Mr. Reid to remove all drywall covering the existing exterior walls on the main floor and in the basement, which would expose the insulated masonry perimeter wall. However, when removing the drywall, there was no insulation on the main floor. Mr. Reid testified that the the drawings indicated the 8-inch masonry perimeter wall was to have 2’ x 4’ wooden studs with insulation. The permit drawings support Mr. Reid’s testimony. They show the existing masonry wall as having 2’ x 4’ wood studs with R14 fibreglass insulation.

[98] New wood studs and insulation were installed by Mr. Reid. Related to that work is another $1,130 extra for the cost of removing existing wood strapping and concrete nails on the main floor and in the basement. In closing submissions, Mr. Reid argued that the existing strapping had to be removed to complete the new perimeter wall work.

[99] There is no evidence of any express agreement by the Owners to these extras. Mr. Reid acknowledged during cross-examination that he did not provide written notice to the Owners prior to performing the work. He relies on Nansheng Xie being on site every day.

[100] I do not accept that an owner seeing a contractor performing work beyond the scope of a contract is itself sufficient to support implied agreement. Particularly in a home renovation context, it presupposes that the owner is at all times familiar with what specific work is or is not included in the contract. More is needed to establish assent or acquiescence.

[101] The evidence does not support a finding that either Nansheng Xie or Yi Xiao were aware that the work proceeding or, even if they were, that they appreciated the work was beyond the scope of the contract and would constitute an extra. Since there is no evidence of express or implied agreement to the perimeter wall work, I need not address the lack of substantiating evidence for the claim in quantum meruit. The requirements for a legally recoverable extra have not been met.

7. Removal and disposal of materials from drain work

[102] An extra for $2,130 is claimed by Kevin Reid for removing and disposing of “materials” left by others. During cross-examination, Mr. Reid testified that Nansheng Xie had asked him to remove concrete left behind by another contractor after drain changes, which he indicated was two tonnes of concrete. Neither of the Owners was cross-examined on the extra. The only other direct evidence on the drain material removal work is in Kenneth Down’s affidavit, which I have not considered for reasons already discussed.

[103] There is insufficient evidence on why the work was needed, the scope of work required, the circumstances of the purported request by Mr. Xie for the work, and how the extras claim has been quantified. I find that Mr. Reid has not met his evidentiary onus to prove this extra.

8. Revisions to chimney flue and fireplace

[104] Mr. Reid claims an extra of $2,080 for revisions to a chimney flue and fireplace in the basement. Although Mr. Reid initially gave evidence in cross-examination that he had incurred a much lower cost to complete the removal and had not charged the Owners for it, he later corrected his evidence to clarify that he was only contracted to demolish the chimney stack and leave the rest of the chimney, since it would be covered by the new rear deck. When the deck size was ultimately reduced, the chimney would have been visible, so needed to be removed.

[105] Mr. Reid testified that the Owners wanted to close the chimney in with block and that he did so. He testified that the $2,080 charge was for removal of materials and filling in the chimney at the direction of the Owners. Neither Nansheng Xie nor Yi Xiao were cross-examined on their direction to do the work. I have no evidentiary basis to find even implicit assent or acquiescence to the work proceeding as an extra. The quantum meruit claim amount has also not been proven.

[106] Regardless, I am satisfied this is not an extra. It was a cost that ought to have been included in the base contract price. The more limited scope of work suggested by Mr. Reid is not reflected in the contract. The scope of work details expressly includes “remove existing chimney flue and cap fireplace” as basement work. I thereby find that Mr. Reid was contractually required to remove the chimney flue and block off the fireplace. Mr. Reid cannot claim as an extra work included in the base contract.

9. Repairing existing hardwood floor

[107] Mr. Reid claims an extra for $1,560 as the cost of repairing existing hardwood flooring on the main floor of the house. Mr. Reid’s evidence was that repairing the flooring rather than removing it saved the Owners money, since the cost of resurfacing the exposed subfloor would have been much higher. To support his position, Mr. Reid tendered his invoice to Binrong He on her project, in which he charged $4,500 for resurfacing her floor. The work at the Owner’s property was apparently performed by Kenneth Down, who did address it in his affidavit, although that affidavit has not been considered for reasons already provided.

[108] The contract expressly required Mr. Reid to “remove all finished flooring and expose sub-floor”. That did not occur. Mr. Reid’s affidavit describes a discussion with Nansheng Xie about the flooring, in which Mr. Xie is said to have accused Mr. Reid of taking “a short cut” by patching instead of removing to save himself money (which Mr. Reid disputes). Mr. Xie was not cross-examined on it. The discussion evidently took place after the repair work was already complete. Mr. Reid tendered no other evidence of a discussion with the Owners about the repair work, either before or after the work was completed.

[109] The Owners were evidently aware that the flooring was repaired instead of removed. Awareness, though, is not sufficient to find that they assented to or acquiesced in the change. The Owners pursue a $4,000 credit for the failure to complete the contractual scope of work. That claim suggests they did not accept it. Although there is no evidence that the Owners have proceeded with removal and resurfacing since completion of the project, the pertinent assessment is whether the evidence supports an agreement to change Mr. Reid’s scope of work from flooring removal to flooring repair. There is no evidence that the Owners agreed to that change.

[110] I accept Mr. Reid’s evidence that his motivation behind repairing the flooring instead of removing it was good intentioned. I accept that he wanted to save the Owners money on the costs of resurfacing. However, I find that he made the change unilaterally and without any agreement by the Owners to vary the contract. By doing so, he assumed the risk that they would not agree to the change after the fact, as they have not, and would not pay him for any costs he incurred.

[111] Even if I had accepted that the repair work was a valid extra, which I do not, credit would need to be given for the cost of hardwood flooring removal. There is no evidence that a credit for deleting the flooring removal scope of work was accounted for in the extra charge for the repair work. If no credit was given, then the Owners were effectively charged an extra for repairing the flooring in addition to being charged for the cost of flooring removal (included in the base contract, but not performed). I deal with an appropriate credit for incomplete scope later in these reasons.

10. Household furniture and appliances

[112] There was an initial delay in Kevin Reid’s work commencing on the project until the Owners’ son had finished his final examinations for school. Mr. Reid’s evidence is that, upon commencing work, the house was still filled with personal and household items, such as dressers, other furniture, and major appliances. Mr. Reid directed his carpenters and labourers to empty the house. Mr. Reid asserts that items were stored or disposed of at the direction of Nansheng Xie. Mr. Reid claims an extra of $1,130 for this work.

[113] None of Mr. Reid’s evidence was disputed by the Owners. They take the position that Mr. Reid did not seek any authorization to empty the contents and they did not approve a change.

[114] Mr. Reid’s scope of demolition and construction work was expansive. The terms and conditions expressly required that the Owners give Mr. Reid “reasonable access as necessary to enable performance” of the contract. Mr. Reid had no contractual obligation to relocate or store furniture or equipment. I accept and find that Mr. Reid could not carry out his construction scope of work without the furniture and appliances first being removed. I also find that Nansheng Xie was aware that Mr. Reid and his crews were removing the furniture and appliances and participated in that process, which constitutes at least assent to or acquiescence in the extra work, if he did not expressly approve it.

[115] There is no evidence supporting the reasonableness of the claimed cost of $1,130. However, there is enough evidence from Mr. Reid to support some recovery. His evidence is that he and his crew spent “the entire day removing everything inside”, although he does not indicate how many carpenters and labourers were involved in the work.

[116] As already noted, in situations where damages quantification is difficult, I must “do my best.” In this instance, I note that Mr. Reid’s invoice to Binrong He includes and a charge of only $500 for removing appliances and furniture from her house prior to and during construction. Mr. Reid’s evidence was that Ms. He’s house was very similar to the Owners’ house. He also relied on the same invoice as accurately reflecting the cost that would have been incurred for the Owners to resurface their flooring. I find it a useful in assessing a reasonable cost of furniture and appliance removal on a quantum meruit basis.

[117] I thereby find that Mr. Reid is entitled to an extra for the furniture and appliance removal work, which I fix on a quantum meruit basis at $600.

11. Supply of angle irons

[118] Mr. Reid claims a $525 extra for supplying an extra three angle irons. His receipt for the purchase was not tendered. Mr. Reid testified that Nansheng Xie agreed by text message to buy the angle irons. The text message, on August 19, 2016, confirms to Mr. Xie that $491.78 is the cost of all angle irons, which I find to be the amount actually paid by Mr. Reid, including HST. Mr. Reid’s text message notes that Mr. Xie can reimburse Mr. Reid. Mr. Xie’s response was “THX”. Mr. Xie subsequently confirmed by text message that the angle irons had arrived and that two more may be required for the garage door. I find that Mr. Xie did request and approve an extra for the supply of three additional angle irons.

[119] Mr. Reid testified that the $525 charged includes credit card interest. Interest was not discussed by the parties and I do not accept it was agreed. I find that Mr. Reid is entitled to an extra for $491.78, including HST.

12. Removal and disposal of materials left by plumber

[120] Kevin Reid testified that he received instructions to remove materials left in the backyard by a plumber. During cross-examination, Nansheng Xie was taken to a text message he sent to Mr. Reid on August 3, 2016 asking for a price to remove “remains left by the plumber in the backyard”. Mr. Reid’s responding text message indicates $500 to remove and dispose of the drainage materials. Although Mr. Reid ultimately charged $325, his oral testimony was that Nansheng Xie told him he would pay only $200 to remove it. The agreed price was not put to Mr. Xie during cross-examination.

[121] I accept that the Mr. Reid and Mr. Xie discussed and agreed on the removal. Based on Mr. Reid’s testimony, I find that the agreed price was $200, not $325.

13. Upgraded skylight

[122] Mr. Reid claims an extra of $260 as the difference in cost between an upgraded 5’ x 6’ skylight and the smaller 4’ x 5’ skylight required by the contract, although tendered no evidence supporting that cost difference. Mr. Reid’s evidence is that the Owners requested a larger skylight. Conversely, Nansheng Xie’s evidence is that the drawings specify two skylights, and that Mr. Reid unilaterally installed a single, large skylight instead.

[123] Irrespective of what is on the drawings, Mr. Reid’s contract scope includes only a single new 4’ x 5’ skylight and curb. If there was direction by the Owners or agreement to install a larger skylight, I am satisfied it would constitute an extra. However, there is no clear evidence supporting that the Owners, or either of them, requested the larger skylight, knew it was being installed, or approved it. Mr. Xie’s evidence disputing agreement to a single skylight when the permit drawings call for two skylights supports that the Owners did not agree to a change. Mr. Reid has not met his evidentiary onus for recovery of this claimed extra.

14. Disposal of a chimney stack

[124] Mr. Reid claims an extra of $260 for disposing materials left when a stucco contractor removed a second chimney. I agree with Mr. Reid’s testimony that neither the removal nor disposal of a second chimney were part of his contract scope. However, he acknowledged during cross-examination that he did not provide any written notice to the Owners before removing the debris. There is no evidence that Mr. Reid was asked to remove it by either Nansheng Xie or Yi Xiao, or that they were even aware that he had done the work before being charged for it. It is thereby not a legally recoverable extra.

c. Was any of the work deficient?

[125] The contract terms and conditions required that Kevin Reid perform the contract work “in in the manner and to the standard to be expected of a reasonable competent Contractor.” The Owners assert set-off and counterclaim for a long list of deficiencies. They have the evidentiary onus of proving those deficiencies, but there is limited direct evidence of alleged deficiencies from the Owners (mostly from Nansheng Xie). Instead, the Owners rely primarily on their two experts to prove alleged deficiencies: Nelson Pacheco and William Wong.

[126] I have first considered the weight to be given to the expert opinions and then considered whether the evidence supports the alleged deficiencies.

i. What weight should be given to the expert opinions?

[127] I have determined that no weight should be given to the opinions or evidence of either expert tendered by the Owners.

1. Nelson Pacheco

[128] Nelson Pacheco, a civil engineering technician, was called by the Owners as their first expert. Mr. Pacheco has over 35 years of construction experience and 15 years of experience estimating and appraising property losses. After uncertainty regarding the areas in which the Owners sought to have him qualified as an expert and following a qualification voir dire, Mr. Pacheco was ultimately qualified on an unopposed basis as an expert in estimating residential construction deficiencies. I have nevertheless determined that, despite his qualification, Mr. Pacheco’s opinion has essentially no value in disposition of this action.

[129] In his affidavit, Mr. Pacheco states that he conducted an estimation of the deficiencies of the work performed by Mr. Reid. His oral testimony confirmed that he attended the property to conduct that estimation on January 7, 2017. Mr. Pacheco’s “report” consists of a chart itemizing various deficiencies and credit items and providing an estimated cost for each item. The items are grouped into two categories: “Estimate for Deficiencies” (totalling $78,419), and “Credit to Client” (totalling $34,013.60). The aggregate value of both categories is $112,432.60 (the quantum of the Owners’ set-off and counterclaim). The chart is the totality of his report.

[130] I previously ordered that all expert reports must comply with Rule 53.03 of the Rules of Civil Procedure. Mr. Pacheco’s report does not. Nothing in Mr. Pacheco’s “report” explains how he has reached his findings, opinions and conclusions, namely his estimation of costs to rectify and complete work and valuation of credits owing. I have four main issues with Mr. Pacheco’s “report”.

[131] First, there is no indication of what, if any, documents were provided or available to Mr. Pacheco to review, consider, or analyze in conducting his estimation. At the outset of his examination, during preliminary instructions for remote testimony by Zoom, Mr. Pacheco indicated that his estimation was based on reviewing a set of drawings. No drawings are included or referenced in his report or affidavit. I acknowledge that one note in the chart refers to “Contract Agreement” and several other notes refer to specific drawing numbers, but nowhere in Mr. Pacheco’s affidavit or “report” does he state that he had or reviewed the parties’ contract or the drawings, which drawings he is referring to, or how he determined which items identified in his estimation were within Mr. Reid’s scope of work.

[132] Second, there is no explanation for how Mr. Pacheco determined that work was incomplete or deficient. No details of his observations are provided. He provides no explanation of the nature and extent of deficiencies observed. The descriptions in the chart constituting his “report” are general and of little assistance.

[133] Third, the state of completion that performing the outlined work would yield is unclear. Are these costs required to achieve the design intent of the permit drawings that Mr. Reid was required to use? Are the contemplated materials the same quality as those required pursuant to the contract, or is there betterment? These kind of questions are completely unanswered.

[134] Fourth, there is no record of what, if any, discussions took place between Mr. Pacheco and the Owners (or others) regarding the alleged deficiencies and incomplete work. There is also no indication of the instructions he received or his methodology in approaching estimation of the alleged construction deficiencies.

[135] Without the above, I cannot assess its reasonableness, reliability, or impartiality of Mr. Pacheco’s estimation.

[136] In any event, I have concerns about Mr. Pacheco’s impartiality. A $13,950 credit is included for removal and replacement of the basement concrete slab. Mr. Pacheco’s brief note suggests that “scars” were left on the concrete floor when walls were removed. Ignoring for a moment that no evidence was tendered by the Owners supporting the existence of “scars” in the basement concrete slab, or that Mr. Reid caused that damage, Mr. Pacheco’s note states, “The Client feels to rectify this issue the entire concrete slab needs to be removed, levelled and replaced.” Mr. Pacheco provides no note, commentary, or opinion on whether complete floor slab replacement is actually required. He appears to have provided a credit estimate for replacing the slab solely on the basis that the Owners “feel” it is necessary.

2. William Wong

[137] William Wong, a materials science engineer, was called by the Owners as their second expert. He has extensive experience in asphalt, soils, concrete, masonry, stone products, aggregates, and ceramics testing. He was qualified on an unopposed basis as a further expert in estimating residential construction deficiencies. Mr. Wong prepared two reports. The first report is a summary of non-conformances in Mr. Reid’s work with the drawings and an opinion on improper invoicing by Mr. Reid. The second is an estimation of the value of renovation work performed by Mr. Reid, as well as incomplete and deficient work, based on the first report.

[138] Mr. Wong’s testimony at trial stripped any evidentiary value that his opinions may have had. Through effective cross-examination and in response to my own questions, Mr. Wong’s opinion was confirmed to be based entirely on unaudited information and undated photographs provided to him by the Owners themselves. I note the following:

(a) Although Mr. Wong attended at the premises to meet the Owners, he did not inspect the property. He conducted no independent assessment or verification of any facts he was given. He simply assumed them to be true.

(b) During cross-examination, Mr. Wong was unfamiliar with the permit drawings and, although he stated that he looked at “some” drawings provided by the Owners, neither his report nor his testimony identified which drawings were reviewed and how they were used in forming his opinion.

(c) Cross-examination further demonstrated that Mr. Wong did not know the locations of photographs (several of which he has misdescribed), and relied on what the Owners told him about where work was performed, the extent of deficiencies, and what was included in the contract scope of work.

(d) Mr. Wong assumed that the undated photographs he was given accurately depicted Mr. Reid’s work, despite many appearing to show work in progress rather then completed work.

(e) Mr. Wong’s cost estimates are also based entirely on the photographs, but he confirmed he had no knowledge about whether Mr. Reid had corrected or addressed any of the deficiencies identified by the Owners.

ii. Is there other evidence supporting the alleged deficiencies?

[139] In his affidavit and through oral testimony, Nansheng Xie identified a number of alleged deficiencies. Mr. Xie’s affidavit provides specific evidence on only seven items of deficient work, with several additional deficiencies raised in his oral testimony. Otherwise, Mr. Xie’s evidence on deficiencies consisted of general, unsubstantiated allegations, with his affidavit reproducing most of the general allegations at para. 4 of the Owners’ statement of defence and counterclaim in a similar generic list format.

[140] The Owners have the evidentiary onus of proving deficiencies. Simply stating that work was performed improperly falls well below the evidentiary threshold required to prove a deficiency. I have only considered those alleged deficiencies that are supported by more than a bare allegation.

[141] Substantive evidence was tendered on deficient workmanship for the rear deck, a chimney, the roof, the skylight, window framing, unevenness of the second floor, and failure to construct the front of the house to design drawings. There was also substantive evidence on unapproved substitutions of specified anchor bolts with Tapcon screws and a block wall with a wooden knee wall.

1. Rear deck

[142] The totality of Nansheng Xie’s evidence in chief on the rear deck is a self-serving statement that Mr. Reid “didn’t follow the drawings to construct the rear deck.” The contract required Mr. Reid to install a 27’ x 12’ deck and railings, including all concrete piers and lumber. Permit drawing nos. S-1 and S-2 depict the approved deck. Although not specifically addressed in trial evidence, the permit drawings appear to depict a much smaller deck.

[143] There was some evidence at trial that Mr. Reid had encouraged a “bigger is better” approach to the deck, but that a smaller deck ultimately had to be constructed. Mr. Reid testified that the smaller deck was required due to deck restrictions imposed by a City ordinance, which resulted in a 30% reduction in the deck size.

[144] Mr. Reid issued a credit of $1,500 for the smaller deck. The Owners seek damages for the cost of removing and replacing the rear deck, as quantified by Nelson Pacheco. However, Mr. Reid’s evidence that the larger deck cannot be constructed without breaching City restrictions was undisputed. The 27’ x 12’ deck does not appear to be what was approved by the City. Yi Xiao testified that, because of deficiencies remaining to be addressed, a deck inspection has not been requested. Had there been such an inspection, it might have assisted the Owners in proving deficiencies in the size or construction of the deck. On the evidence before me, the only deficiency with any evidentiary support is that the deck piers are not concentric.

[145] Both of the Owners’ experts opined that the deck was constructed on piers that were not excavated to below the frost line. William Wong has no basis for that opinion since he did not inspect the deck himself. While I have given Nelson Pacheco’s report no weight, he did testify regarding his site inspection on January 7, 2017, and gave specific evidence on the concrete piers being incorrectly installed. Having been qualified as an expert in construction deficiencies, I have given some weight to that first-hand observation. However, Mr. Pacheco was not asked how he determined, as stated in his estimate for deficiencies, that the concrete piers were installed at only a two-foot depth. He does not appear to have conducted any excavation during his inspection.

[146] Kevin Reid’s own responding expert, Jelbert Real, who was qualified as an expert in structural engineering, inspected the deck in August 2018. He provided an opinion on the piers as part of his brief responding report on deficiencies. Mr. Real opined that, while he could not confirm the depth of the concrete caissons, there were no signs of settlement on the deck. He also observed that the deck posts were not installed concentrically on the concrete piers. However, in his affidavit, Mr. Real opined that a soil report would be required to assess if the loads carried by the posts and piers are within the limit of soil bearing pressure.

[147] The Owners have the evidentiary burden of proving deficiencies in construction of the deck. They have tendered no cogent evidence that the deck was installed deficiently. I find that it was not. I do find, however, as admitted by Mr. Reid, that the installed deck is smaller than the deck size specified in the contract. That is, technically, a deficiency in and of itself.

[148] With respect to the Owners’ claim for replacement of the deck, they have the evidentiary burden of proving their damages. The only evidence on cost of a 27’ x 12’ deck is the estimation by Nelson Pacheco, which estimates the construction cost of a pressure treated rear deck and concrete piers at $11,800. However, there is no comparative evidence on the cost of the deck as installed. The size of the deck installed is not in evidence. I find that the Owners have not met their evidentiary burden of proving that the actual loss incurred exceeds the $1,500 credit already given by Mr. Reid.

2. Chimney

[149] I agree with the Owners that Mr. Reid’s failure to entirely remove the chimney in proximity to the rear deck was a deficiency. However, Mr. Reid did remove the remaining part of the chimney and I have denied his claim for an extra. There is no evidence of any damages to the Owners from the delay in completing that removal work.

3. Roof

[150] I have already addressed the roof. I found it was installed deficiently, but also that it was replaced. I have denied Mr. Reid’s claimed extra. There is no evidence from the Owners supporting any further deficiencies in the roofing installation or materials since the replacement work was completed in November 2016.

[151] Part of the Owners’ set-off and counterclaim is for the cost of re-roofing to add missing roofing felt. However, Mr. Xie acknowledged during cross-examination that, although he had thought it was part of the contract at the time of construction, he is aware now that it is not included in the drawings and admitted it was not part of the contract. I thereby find no loss to the Owners.

4. Skylight

[152] The Owners’ evidence is that the skylight has been incorrectly installed, resulting in screeching noises. Mr. Reid is said to have been notified about the problem, but did not fix it. During cross-examination of Yi Xiao, Mr. Reid put a text message to her from the individual he says installed the skylight. The text message suggests that installation is not the source of the problem. It is a hearsay use of the text message since the installer was not called as a witness. I give the text message no weight.

[153] However, Ms. Xiao admitted that she did not hire an inspector to determine where the noise was from and that she did not know where the noise was coming from. Based on this uncertain evidence, I find no deficiency in the skylight installation.

5. Window framing

[154] Nansheng Xie’s affidavit evidence is that Kevin Reid “unliterally constructed the window frames from the back of the house in a way that was inconsistent with the drawings”, that he “took the decision to remedy the issue in his own way when he found that the windows were missing frames”, and that the “window frames were installed improperly.” Mr. Xie’s affidavit states that the Owners “encountered multiple problems when we subsequently installed the window jambs”, which is apparently work that the Owners have since had performed by other contractors.

[155] The Owners tendered no substantiating evidence regarding these alleged deficiencies in Mr. Reid’s window framing work. There are no invoices from remediation contractors or evidence from them supporting the deficiencies. There are no details of what “multiple problems” were encountered, how the back window frames varied from the drawings, and what was improper about installation of the frames.

[156] Simply put, Mr. Xie’s evidence is too general and unsubstantiated to support a finding of any deficiency in Mr. Reid’s framing work. The Owners have not met their evidentiary onus. I find that there were no such deficiencies in Mr. Reid’s window framing work.

6. Uneven second floor

[157] There was some evidence at trial about the second floor being uneven when construction was completed. Nansheng Xie testified that the floor was uneven, and disputed that Mr. Reid had fixed the issue. While Mr. Reid sought to prove through cross-examination that any unevenness had been corrected, there is insufficient evidence to find that second floor is, in fact, uneven. I thereby find that the Owners have not met their onus of proving this alleged deficiency.

7. Front of house errors

[158] Yi Xiao testified that Mr. Reid failed to follow the design drawings in completing the front of the house. In an effective cross-examination, Mr. Reid put both the permit drawings and a photograph of the completed house front to Ms. Xiao, who admitted that it is hard to see the difference between the drawing and actual construction. Ms. Xiao testified that Arben Shpati told her that Mr. Reid had not completed the work per the drawings. However, Mr. Shpati did not testify and no other evidence supporting a variance from the drawings was tendered. This alleged deficiency has not been proven.

8. Tapcon screw substitution

[159] Mr. Reid does not dispute that he substituted Tapcon screws in constructing the second floor, where anchor bolts were expressly required by the contract. His affidavit states that the substitution was because using anchor bolts “would have delayed us by another 2 days”. Although a fair amount of evidence was tendered on the anchor bolt substitution, it is a red herring issue. Mr. Reid ultimately rectified the deficiency by installing the required anchor bolts. There is no evidence of any damages or losses suffered by the Owners.

9. Wooden knee wall substitution

[160] The Owners argue that Kevin Reid’s substitution of a specified block wall with a wooden knee wall is an unapproved change. The contract stipulates cement exterior block walls on the second floor. Mr. Reid constructed a wooden knee wall. Notwithstanding the contract, Mr. Reid testified that substitution of a wooden knee wall for the specified cement block wall was agreed by the Owners and the Arben Shpati prior to signing the contract, which was, in part, why $12,000 was reduced in the contract price. Mr. Reid also separately testified that he used wood for the knee wall both because he prefers it and because it is cheaper.

[161] Nansheng Xie testified that there was no discussion or agreement to change the block wall to a wooden knee wall. Mr. Reid testified that his discussion was with Arben Shpati, but that evidence is inconsistent with Mr. Xie’s testimony on his own discussions with Mr. Shpati about the knee wall. Arben Shpati was not at trial to clarify. Mr. Reid’s testimony is also inconsistent with the signed contract, which provides for cement exterior block walls. Although Mr. Reid urged me to find that the permit drawings specify a wooden knee wall, it was not clearly confirmed in trial evidence and it is not clear to me from the drawing that wood is specified. Notably, Mr. Reid gave inconsistent evidence on this point. In his affidavit, Mr. Reid stated that a cinder block wall was marked on the drawings.

[162] I find that the material substitution from a concrete block wall to wooden knee wall was unilaterally initiated by Mr. Reid.

[163] It is evident that the Owners became aware of the substitution at a time when they could have directed it be removed and replaced. Mr. Xie testified that Mr. Reid had agreed to give a credit for the substitution, but never did. During cross-examination, Mr. Reid challenged Mr. Xie about why he did not direct that the knee wall be removed and the block wall be installed per the permit drawings. Mr. Xie testified that the construction project had already commenced, that Arben Shpati told him that Mr. Reid had insisted on the wooden knee wall and that it would satisfy Building Code requirements, and that a credit had been promised. His evidence is consistent with, and I find, that the Owners acquiesced in the change.

[164] I accept Mr. Reid’s evidence that a wooden knee wall is cheaper than a block wall. While I have found that the Owners acquiesced in the change, it would be inequitable for Mr. Reid to retain the financial benefit of a change that he unilaterally initiated and evidently resulted in cost savings that were not passed on to the Owners. I thereby find that the wooden knee wall substitution is not a deficiency, but rather is an approved change for which the Owners are entitled to a credit for the material substitution.

d. What credits are owed for incomplete work?

[165] Kevin Reid provided credits to the Owners in his final invoice for incomplete ceilings inside the garage, a small deck being built, not installing the new windows, and for doubled-up joists not being required under the living room. The aggregate of these credits is $3,580 plus HST.

[166] I have assessed the Owners’ challenges to the sufficiency of credits given and claims for additional credits. My determinations on those credits not already addressed follow.

1. Garage ceiling

[167] The Owners’ position is that the credit for incomplete ceilings in the garage should be $3,000 (based on William Wong’s assessment), not the $500 credited by Mr. Reid. However, I have given Mr. Wong’s opinion no weight, and no other evidence was tendered supporting quantification of a $3,000 credit. The Owners bear the evidentiary burden of proving their set-off claim, which in this instance means proving their claimed completion costs. They have not done so. I thereby accept Mr. Reid’s credit.

2. Window installation

[168] Mr. Reid credited the Owners $1,080 for not installing windows, which was within his contract scope. There is no evidence of any agreement that Mr. Reid would no longer have to install the windows. In my view, the Owners are entitled to a credit for the reasonable cost of having the windows installed by others.

[169] The Owners have tendered no evidence of any actual costs incurred to install windows. They rely entirely on Nelson Pacheco’s estimate of $20,063 for window and exterior door installation. I have already held that Mr. Pacheco’s opinion should be given essentially no weight due to the lack of transparency on his quantification, methodology, and assumptions. However, given the number of windows depicted in the permit drawings, I accept that the actual cost of window installation is greater than $1,080. In the circumstances, I am not prepared to deny the Owners a more reasonable and fair credit for the incomplete work.

[170] This is another item where I must “do my best” with the limited evidence available to me. While I accept that reframing the window openings to accommodate larger window sizes is different work than actual window installation (and Mr. Reid’s testimony on the work required to resize the openings supports my view), I agree with the Owners that there is nevertheless a disconnect between a $9,360 extra cost for reframing a few larger windows (which I have not allowed in full) and the credited value of installing all windows a $1,080. I accordingly fix the reasonable amount for installation of the windows at $4,000.

3. Joists under living room

[171] Mr. Reid acknowledges that he did not complete doubling floor joists under the (former) living room. There was no agreement that he would not complete that scope. He testified that it was not required because the existing joists were adequately spaced, so the additional 10-12 joists that would have been required were credited. Mr. Reid provided a credit to the Owners of $500. That credit amount was for labour and materials, which Mr. Reid calculated himself.

[172] The Owners assert that the $500 credit is insufficient, and that a $10,000 credit should be given. That figure is taken from William Wong’s cost estimate, for which no substantiation has been provided. It represents a disproportionate percentage of the overall total contract price, so in my view requires substantiation. The Owners have failed to prove that the cost of supplying and installing the additional floor joists would be $10,000.

[173] Given Mr. Reid’s undisputed evidence that 10-12 joists were not supplied, his credit translates to a labour and material cost of $42 to $50 per joist. Without evidence on the size of the joists, the cost per sq. ft. to supply the specified floor joists, and required labour hours to install them, I cannot accept Mr. Reid’s calculation is a reasonable value for the incomplete work. It appears too conservative a credit.

[174] Doing my best based on the limited evidence, I fix the reasonable cost of supply and installation of the incomplete floor joists at $80 per joist, for a total of $960 on the basis of 12 joists that were not supplied.

4. Skylight

[175] The Owners seek a $3,000 credit for the uninstalled skylight, relying on William Wong’s report. As I have already observed, notwithstanding that the drawings depict two skylights, the contract refers only to a single skylight. In any event, the Owners have the evidentiary onus of proving the claimed skylight cost, but have tendered no evidence supporting a $3,000 cost for the missing skylight other than Mr. Wong’s cost assessment. Since I have given Mr. Wong’s assessment no weight, the Owners have not met their evidentiary burden.

5. Gas proofing of the garage

[176] I found earlier in these reasons that Mr. Reid failed to establish that required gas proofing of the garage, denied by the Owners as being complete, had been performed. The Owners’ are entitled to a credit for that incomplete work, but they bear the evidentiary burden of demonstrating the cost of completion. Evidence on incomplete and deficient work in the garage was limited. This item does not appear to be included in the incomplete garage ceiling item.

[177] The Owners’ only evidence of the extent of work required is the chart prepared by Nelson Pacheco, which indicates a cost of $2,000 to remove shelving and supply and install necessary drywall on two adjacent walls. I have already addressed the limited evidentiary weight of Mr. Pacheco’s costs assessment. Combined with a lack of evidence from the Owners on where the gas proofing was required to be installed by the permit drawings, I cannot find that the proposed scope of work is necessary or the cost reasonable. The Owners should receive a credit for the incomplete work, though, so in the absence of any other evidence I fix the fair and reasonable credit owing for incomplete gas proofing at $500.

6. Hardwood flooring removal

[178] I have found that the Owners are entitled to a credit for Mr. Reid’s failure to remove the hardwood flooring as contracted, and have denied Mr. Reid’s claimed extra for repairing the flooring instead. The Owners claim a $4,000 credit, seemingly drawn from William Wong’s assessment for the cost of “levelling of the floor of the living room”. It is not clear to me that line item is applicable, but I have given Mr. Wong’s assessment no weight in any event.

[179] The only other evidence tendered on the cost of removing the hardwood flooring is the cost estimate prepared by Nelson Pacheco. Mr. Pacheco estimated a cost of $1,600 to remove the existing hardwood floor. Although I have given Mr. Pacheco’s assessment essentially no weight, I have no other evidence. It would be inequitable to deny the Owners any credit in circumstances where I have found that Mr. Reid’s decision to repair instead of remove the hardwood flooring was an unapproved change. I thereby accept Mr. Pacheco’s quantification for this item as a fair and reasonable credit for the incomplete work.

7. Wooden knee wall

[180] I have also found that the Owners are entitled to a credit for the change from a block wall to a wooden knee wall, which should be equal to the cost savings of using the less expensive wood option. The only evidence on the cost of supplying the missing block work is, again, in Nelson Pacheco’s cost estimate, which quantifies the cost of supply and installing permitter masonry blocks at $35 per sq. ft., calculated over 343.5 sq. ft., for a total of $12,022.50.

[181] Unfortunately, because Mr. Pacheco failed to tender an expert report in compliance with Rule 53 and provided limited viva voce testimony, I am unable to assess how he determined that the affected area is, in fact, 343.5 sq. ft., nor am I able to assess the reasonableness of $35 per sq. ft. There is no other evidence.

[182] In closing submissions, Mr. Reid indicated his view that the affected area was 120 lineal feet. He provided a rough calculation that, if I understood him correctly, yielded two courses of block totalling $2,800 before accounting for the cost of the wood. It is not clear to me that his view of the affected area is any more reliable than Mr. Pacheco’s view. Mr. Reid’s closing submission is also not evidence, so cannot ground a reasonable conclusion.

[183] There is no evidentiary basis on which I am able to find a reasonable value for the cost difference between the block work and the wooden knee wall. While my view remains that, in assessing damages, I should not undertake an exercise amounting to guesswork, which may thereby vitiate evidentiary onuses, it would be inequitable to deny the Owners a credit for this “cheaper” option, which was unilaterally initiated by Mr. Reid primarily for his own benefit. He states in his affidavit that “using wooden knee walls instead of a cinder block wall (as marked on the drawings), was because they were cheaper, lighter and faster. A cinder block wall would have been heavier, more expensive, a lot more time consuming.”

[184] Mr. Reid received labour and material savings that ought reasonably to have been passed on to the Owners. He initiated the knee wall change without discussing it with the Owners (albeit that he appears to have discussed it with Arben Shpati) and without obtaining their approval. Although I have found acquiescence by the Owners in the change, Mr. Reid has the primary evidentiary onus of proving the value of services and materials actually supplied. In this instance, he is also in the best position to have tendered evidence on the cost differential between the contract work he was supposed to perform and the work he actually performed.

[185] In these circumstances, it is both fair and just that I err on the side of the Owners in fixing what I view as a fair credit for the change from the “more expensive” cinder block wall to the “cheaper” wooden knee wall. I accordingly fix the differential cost savings from the change at $5,000 and find that the Owners are entitled to a credit in that amount.

e. What amount is owed under the contract?

[186] Based on my findings above, the sum of $8,277.97, including HST, remains owing to Kevin Reid under the contract, including extras, calculated as follows:

Unpaid base contract (incl. HST) $ 18,250.00

Allowed credits for incomplete work

Rear deck $ 1,500.00

Garage ceiling 500.00

Window installation 4,000.00

Joists under living room 960.00

Gas proofing of garage 500.00

Hardwood flooring removal 1,600.00

Wooden knee wall 5,000.00

$ 14,060.00

HST on allowed credits 1,827.80

Subtotal $ 15,887.80 < 15,887.80>

Allowed Extras

Window details and openings $ 4,000.00

Removal of furniture and appliances 600.00

Supply of angle irons 435.20

Removal and disposal of materials 200.00

$ 5,235.20

HST on allowed credits 680.57

Subtotal $ 5,915.77 5,915.77

Unpaid Balance Owing (incl. HST) $ 8,277.97

f. Who breached the contract?

[187] There is no specific term permitting the Owners to withhold payment for the value of alleged incomplete or deficient work. The Owners’ obligation under the terms and conditions of the contract was expressly to “pay the Contractor the Total Price in accordance with this Contract.” Since I have found an unpaid balancing owing to Kevin Reid that is less than the final 10% payment, whether the Owners breached the contract by non-payment turns on whether the unpaid balance was due when the lien was preserved.

[188] Final payment under the contract is not tied to Mr. Reid’s completion of all work. Rather, the contract provides that the final 10% of the base contract price is payable upon “release of framing inspection”. There was no evidence or argument on what “release” of the framing inspection means.

[189] I am satisfied that framing was completed on August 18, 2016. That is Mr. Reid’s evidence in his affidavit, corroborated by a text message sent to Yi Xiao on that date confirming, “Framing 100% passed.” In response, Ms. Xiao thanked Mr. Reid and stated, “I will write a cheque for you”. The date is undisputed by the Owners. Nansheng Xie admitted during cross-examination that framing inspection had passed. The parties appear to have treated the August 18, 2016 date as the date for the third payment under the contract upon completion of framing, which was paid.

[190] The contractual trigger for payment of the final 10% is of the contract is “release” of the framing inspection. Notwithstanding Mr. Reid’s evidence that the framing passed inspection on August 18, 2016, the City’s building inspection status report tendered at trial indicates that structural framing and insulation/vapour barrier inspections were passed on October 19, 2016. There was no evidence on the discrepancy between Mr. Reid’s evidence that framing inspection passed in August 2016 and the date on the City’s inspection status report. Since the date is undisputed, I accept that the framing inspection did pass on August 18, 2016, but I take the later date as the release date for the framing inspection.

[191] As already noted, the contract does not provide for withholding payment for alleged or actual deficiencies. Yi Xiao’s cross-examination testimony was that non-payment to Mr. Reid was because the contract work was not yet complete and that there were outstanding issues with the construction work. In particular, Ms. Xiao pointed to the deck work not yet being finished and the roof continuing to leak. Notwithstanding that position, no clear notice of the Owners’ reasons for non-payment were given to Mr. Reid at the time.

[192] I find that the Owners breached the contract by failing to make payment to Mr. Reid of the final 10% of the base contract price upon release of the framing inspection. However, since I have found that the unpaid amount owing under the contract is less than that amount, the extent of the breach is limited to the $8,277.97 owing.

g. Is Mr. Reid’s lien timely?

[193] Timeliness of Kevin Reid’s lien is not challenged in the Owners’ statement of defence and counterclaim, nor was it challenged during the Owners’ trial submissions. However, proper disposition of this lien action requires that I consider Mr. Reid’s compliance with the Construction Lien Act for timely preservation and perfection of the lien and set down or order for trial of this lien action.

[194] Although roof remediation work was completed in mid-November 2016, it is now well-established law that deficiency remediation work does not extend lien rights. However, I am satisfied that the contract work was not completed until October 25, 2016. That is the date, as support by trial evidence, on which the deck was finished and garbage removal commenced. Mr. Reid’s lien was preserved on December 5, 2016, within 45 days of that completion date, was perfected shortly thereafter, and an order for trial was then obtained less than a year after perfection. Mr. Reid’s lien is timely.

IV. Conclusion

[195] For the foregoing reasons, I find that Kevin Reid is entitled to a lien in the amount of $8,277.97, including HST, and judgment against the Owners in the same amount, plus pre-judgment interest pursuant to the Courts of Justice Act from the date of the lien.

V. Costs

[196] Bills of costs have been filed. I encourage the parties to resolve the issue of costs themselves. If they cannot, then costs submissions shall be made in writing.

[197] Both sides must address the restrictions on costs available to self-represented litigants as most recently set out by the Court of Appeal in Girao v. Cunningham, 2021 ONCA 18 and previously in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228. In Girao v. Cunningham, the Court of Appeal confirms that costs should only be awarded to self-represented parties who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and, as a result, incurred an opportunity cost by foregoing remunerative activity.

[198] Mr. Reid shall serve his written submissions within thirty (30) days. The Owners shall serve their responding submissions within thirty (30) days of being served with Mr. Reid’s submissions. Mr. Reid shall thereafter be entitled to serve reply submissions, if any, within fourteen (14) days of being served with the Owners’ responding submissions. Absent leave of the court, written submissions of the parties shall not exceed five pages, excluding any offers to settle or case law, with any reply submissions not to exceed two pages. All written submissions shall be submitted by email directly to my Assistant Trial Coordinator with proof of service.

[199] In the absence of receiving written submissions as directed above, the parties shall be deemed to have agreed on costs.

VI. Report

[200] Pursuant to the Construction Act, the results of a trial within a reference are to be embodied in a report in the prescribed form. An appropriate form of report shall be addressed following my determination on costs.

ASSOCIATE JUSTICE TODD ROBINSON

Released: November 12, 2021

COURT FILE NO.: CV-16-566839

DATE: 2021 11 11

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended

B E T W E E N:

KEVIN REID

Plaintiff / Defendant by counterclaim

• and -

YI XIAO, NANSHENG XIE and COMPUTERSHARE TRUST COMPANY OF CANADA

Defendants / Plaintiffs by counterclaim

REASONS FOR JUDGMENT

Associate Justice Todd Robinson

Released: November 12, 2021