COURT FILE NO.: CV-15-0315-00

DATE: 2021-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

2002759 ONTARIO LTD. Carrying on business as SUPERIOR CONTRACTING

Ms. R. Clinker, for the Plaintiffs

Plaintiffs

• and -

CHRISTOPHER JAMES KOROPESKI, CAROLYN FRANCES KOROPESKI

Mr. W. Mouck, for the Defendants

Defendants

HEARD: May 10-15, May 21 and May 28, 2021, at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Judgment

OVERVIEW:

[1] The Plaintiff was hired by the Defendants to build a two-storey addition to their home and to perform certain renovations to their existing home (the “Project”).

[2] The contract price, scope of work to be performed for that price, who breached the contract, value of extras, and whether the work performed on the Project was done in a good and workmanlike manner, are issues I must decide.

[3] The Plaintiff claims there was a verbal contract for $186,000 plus H.S.T.

[4] The Plaintiff acknowledges that the Defendants are entitled to a credit of $19,769.35 against the amount owed on account of unfinished work under the contract, deficient work or work contemplated by the contract but performed by the Defendants.

[5] The parties agree that the sum of $145,000 was paid by the Defendants on account of the project.

[6] The Plaintiff claims the sum of $46,540.65, inclusive of H.S.T. and interest, remains owing on account of the contract, in addition to extras for which it has not yet received payment, for a total amount of $33,747.78, for a total claim of $80,288.43 plus pre-judgment interest calculated from February 2015.

[7] The Defendants argue that this was a “turn-key” project. They allege it was agreed that all the work being claimed for was to be performed for the price of $173,000 inclusive of H.S.T. The Defendants argue that after taking into consideration the $145,000 paid by them, the value of the agreed upon credits admitted by the Plaintiff, and the cost of rectifying deficiencies in the work performed, they have overpaid the contract by $36,223.55. They counterclaim for this amount.

[8] For the reasons outlined below, I find that the Defendants owe the Plaintiff the net amount of $61,940.73.

THE FACTS:

[9] The Plaintiff (“Superior”) is a general contracting company that performs commercial and residential construction and renovation work.

[10] Mr. Rick Yoller is the owner and operator of Superior. He testified at trial on behalf of the Plaintiff and was involved in all discussions with the Defendants.

[11] The Defendants, Christopher and Carolyn Koropeski (the “Koropeskis”) are spouses and the owners of a home located at 175 North Hill Street, Thunder Bay (the “Property”).

[12] The Defendants commissioned drawings from an architectural firm for the Project. They contacted various contractors to obtain quotes for the work to be done.

[13] The parties first met in August 2013. Mr. Yoller came to the Koropeski home, picked up the initial drawings, had a tour of the property, and discussed some ideas for the Project with Mr. Koropeski. No price was discussed at this time.

[14] On October 23, 2013 there was a telephone discussion between Mr. Yoller and Ms. Koropeski in which he estimated the cost of the Project, as reflected in the drawings he had, as $172,000 to $173,000. Mr. Yoller testified that this was a “rough ballpark” only. There was some discussion about the Defendants wanting to do some of the work themselves. No contract was formed yet, as the Koropeskis had not agreed to hire Superior and Superior had not yet agreed to perform the work.

[15] On October 30, 2013, Mr. Yoller dropped off the old drawings and picked up the newly revised architectural drawings. None of the parties recall any discussion about price, but merely an expression of interest in working with each other.

[16] Discussions continued on a more serious basis between December 2013 and January 2014, when it was agreed that Superior would perform the work.

[17] On January 23, 2014 the parties met to finalize the details of the project:

Mr. Yoller recalls discussing the price to be in the $173,000-175,000 range. He does not recall the specifics of the conversations. He does recall that this price was a quote based on the drawings he had received in October 2013. The Koropeskis then asked for an HVAC system and a few other additional items that were not reflected in the drawing. He recalls telling them that these would increase the estimate to $185,000-$187,000. The Koropeski’s agreed, citing another quote over $200,000. He remembers leaving the home with a price in the “mid-180’s” in his mind. He was also willing to credit them for work they chose to do, including demolition of back porch and back stairs and painting. The Koropeskis were going to install their own cabinets, the flooring and the doors. This, and other finishing work, was not included in the price. The term “turn-key” was not raised with him.

The Koropeskis recall still discussing a price in the $172,000-173,000 range. They remained under the assumption that this was a turn-key price, meaning that all finishings would be completed. They deny that any price in the $185,000-$187,000 range was discussed. They discussed wanting to be involved in the project and to receive credit for items they did themselves. While they did not discuss specific items or amounts of credits, in their mind this included credits for items such as the kitchen cabinets, flooring and bathroom fixtures.

[18] After the January 23^rd, 2014 meeting, further revisions to the drawings were required. completed and submitted to the City of Thunder Bay for approval in April 2014 (the “April drawings”. A building permit was issued.

[19] The Koropeskis moved out of the home and Superior began work on the Project in June of 2014. The Koropeskis made various payments. The work progressed, although not as quickly as the Koropeskis had hoped. The relationship between the parties appeared to be good.

[20] In August 2014, at the request of the Koropeskis, Superior prepared a handwritten breakdown of the anticipated costs of the entire project, for the purpose of the Koropeskis’ application for financing. This breakdown totalled $245,295 plus H.S.T.

[21] The parties testified that Mr. Yoller explained to the Koropeskis that this was a high estimate of the total cost of the project, including all the items that the Koropeskis had undertaken to do on their own for finishing, and that did not form part of the contract.

[22] Ms. Koropeski’s evidence was that she became concerned when she saw this document, but Mr. Yoller partially allayed her concerns when he said it was an inflated estimate for financing purposes.

[23] The Koropeskis were concerned about ensuring that the cost of the project was controlled. Their evidence was that they repeatedly asked Superior to provide them with a breakdown of costs. They testified that this was not provided.

[24] Mr. Yoller confirmed that Ms. Koropeski asked him on various occasions for prices for various items that formed part of the contract. He did not feel this was necessary given it was a fixed price contract, and therefore the cost of specific items was irrelevant to the homeowner. Ms. Koropeski testified that she wanted a breakdown of all contract items so that she could determine the credits they were entitled to for items completed by them.

[25] Superior did provide a statement on November 4, 2014 confirming the total amount paid by the Koropeskis. The statement/invoice did not set out the contract price or the amount remaining owing.

[26] In November 2014, after paying $145,000 towards the contract price, and given the amount of work they had done on their own that they thought they were to be credited for, the Koropeskis believed that they had paid all they should be required to pay under the terms of the contract, and may have overpaid.

[27] In December 2014 the Koropeskis returned to the home to live. Their evidence is that it was only once they were in the home, did they realize the extent of the deficiencies in some of the work done.

[28] In early January 2015, Mr. Yoller advised the Koropeskis that they still owed approximately $102,000 on account of the contract price, extras and HST. Work was substantially complete, although not fully completed. The Koropeskis were shocked and upset given their view that they had paid more than they should have. At this meeting they discussed five or six deficiencies with Mr. Yoller, none of which were significant. Mr. Yoller agreed to rectify them. A few days later he returned to the home to begin correcting one of the deficiencies.

[29] On January 29, 2015, the parties met to discuss the status of the Project and payment that Superior claimed was outstanding. Mr. Yoller provided the Koropeskis with an invoice for the amount of $41,240.65 owing on the contract, and $37,600.75 on account of extras. In total, $78,941.40 was claimed by Superior as owing, inclusive of H.S.T.

[30] At this meeting the Koropeskis provided Superior with a deficiency list they had created with the assistance of a family member and friend, with numerous deficiencies alleged. Mr. Yoller testified that he recalls 46 matters on the list. They did not walk around the home to look at each issue but did discuss them. The meeting was tense.

[31] While Mr. Yoller did not agree with all the items on the deficiency list, he set about to start correcting those items that he did agree with. He testified the relationship remained tense.

[32] On February 25, 2015 the Koropeskis wrote a letter to Superior further expressing their dissatisfaction with the work performed. They stated that they “would be withholding any further payment until we can determine these remaining costs. Once we have determined these figures, we will be in touch.”

[33] Some of the incomplete work was work that could not be performed until the Spring. In April 2015, the Plaintiff had delivered to the Koropeski home materials for the outside decking. The Koropeskis were upset by this, given they had asked Mr. Yoller not to do anything further until some of the issues were determined.

[34] On April 15, 2015 the Koropeskis sent a letter to Superior terminating the contract and setting out the reasons. In short, they were concerned they were being overbilled, and with the quality of the work.

[35] The parties were unable to resolve their differences. On May 25, 2015, Superior registered a claim for lien on title to the Property. This action was commenced on July 9, 2015. The claim for lien has since been discharged.

ANALYSIS:

What is the contract?

[36] The first step is to determine the terms of the contract.

[37] The parties agree that they contracted for the provision of renovations services and products by Superior with respect to the Koropeskis’ home. They further agree that it was a fixed price contract with an option to reduce the price should certain items be done by the Koropeskis. They disagree as to the amount of the contract, and what was included in the fixed price.

[38] The Plaintiff argues that the contract price was $186,000 plus H.S.T. The scope of the contract was to do all necessary work to construct the addition and renovate the existing home based on the architectural drawings provided to Superior on October 23, 2014, up to the point that drywall and paint were completed. The Defendants were to perform all finishing work.

[39] The Defendants argue that the Plaintiff was hired to complete the project reflected in the drawings, to the point of it being finished and ready to live in, with the exception of doors and trim, for a price of $173,000 inclusive of H.S.T. They wanted the project to be “turn-key”, meaning the contractor assumes responsibility for all work to the point of being fully finished. The Koropeskis were to receive a credit for any of the work included in the scope that they did themselves. They were hoping to receive a credit in the range of $30,000 to $60,000 for work they did, although this amount was not discussed with Superior.

[40] The Defendants rely on s. 11 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A. This section requires any ambiguity in a consumer agreement that allows for more than one reasonable interpretation to be interpreted to the benefit of the consumer.

[41] The Plaintiff agrees that the base contract in the matter at hand is a “consumer agreement” as defined in the Consumer Protection Act. The Plaintiff does dispute the Defendants’ ability to rely on this provision given that they did not plead it. The Plaintiff further argues that the Defendants failed to plead that the contract was ambiguous. The Plaintiff alleges the Defendants are engaging in “trial by ambush”.

[42] I do not need to resolve this issue. The differences between the parties can be resolved on the basis of the burden of proof.

General Principles:

[43] In circumstances such as this, in which the contract is unwritten, a judge must assess what is reasonable or consistent with the purpose or intention of the contract. See Cornerstone Select Properties Inc. v. Matthews and Matthews v. Varcoe, 2018 ONSC 679, at para. 117.

[44] In deciding the terms of a contract, the factual matrix in which the contract was formed, the words and conduct of the parties before, at the time of, and after the initial meeting of the minds, and the intention of the parties must also be considered. See Rob Marchand Construction Ltd. v. Scott, 2016 ONSC 12 (Div. Ct.), at para. 8.

Price:

[45] The parties agree that they had discussions about a contract price in the range of $173,000. Mr. Yoller’s evidence is that he recalls a range of $173,000-175,000 being discussed, while the Koropeskis recall a range of $172,000-173,000.

[46] I prefer the evidence of Mr. Yoller in concluding that this was not the final contract price agreed upon. I accept that the agreed upon range of price was increased at the January 23, 2014 meeting by the addition of HVAC and a hot water on demand system that was requested by the Koropeskis.

[47] Although the evidence of all parties was vague as to the exact discussions that took place, I do not accept that it was reasonable for the Koropeskis to infer that the addition of such significant items would come at no extra cost over the $173,000 price they were expecting to pay.

[48] The position of the Koropeskis is that it was reasonable to make this inference given that significant changes were made to the original drawings on which Mr. Yoller quoted the $173,000 price, which included removing the walkout basement and simplifying the bathroom renovation. It was, therefore, reasonable to assume that the HVAC and hot water on-demand system could be added at no extra cost, given that the removal of the walkout and extensive bathroom renovation should have reduced the price in any event.

[49] This flies in the face of Ms. Koropeski’s evidence. Her evidence is that even after the October drawings were completed, and prior to raising the HVAC and hot water on-demand additions with Mr. Yoller, she was still proceeding on the assumption that the contract price was in the $173,000 range. She felt this was reasonable given other quotes she had received. In her evidence when discussing the HVAC, she described it as an extra item. The reasonable assumption is that there would be an extra cost.

[50] What becomes more difficult is determining where exactly the price landed. Mr. Yoller recalls leaving the January 23^rd meeting with a price ‘in his head’ of mid-180’s. I am satisfied that it was in the range of $183,500 - $187,000. The Plaintiff has failed to prove where in the range it was, and therefore I am left to adopt the lowest end of the range.

[51] Mr. Yoller’s oral evidence was “mid-180’s”, $186,000 and $187,000. His handwritten records of the project all show different numbers.

[52] An undated handwritten document prepared by Mr. Yoller for his own purpose, and not provided to the Koropeskis (Exhibit #4), has “New House” with the price of $175,000 (or $178,000 – it is unclear) scratched out and $185,000 written in and circled. Further on in the document under the heading of “Re-Quote” is “Quote” $175,000, scratched out and circled with $183,500, with the additional notation of “You do Finishing, Paint etc.”. Mr. Yoller struck me as honest and forthcoming in his evidence, and I accept that this was not an effort to change the numbers after the fact. I accept that given all of Superior’s records are handwritten, numbers were updated through this method as circumstances changed.

[53] Another handwritten document prepared by Mr. Yoller on May 2, 2014 for his own internal purposes indicates that on January 23, 2014 he quoted a price of $186,000. The document also contains a notation that demolition, all cabinets, trim, flooring and doors were to be done by the owner.

[54] A number of documents, not all of which were shared with the Koropeskis during the contract term, show a quote of $187,000. A document that has the original date of August 8, 2014 (updated to January 28, 2015). The handwritten document dated January 4, 2015 that was given to the Koropeskis showing a balance owing of $102,573.70 has an “estimate” price of $187,000. A breakdown of the project, including material and labour costs prepared on January 28, 2015 has the quoted amount as $187,000.

[55] Given the inconsistencies in the Plaintiff’s own evidence as to the amount quoted as the contract price, I find that the contract price is $183,500. This is consistent with Mr. Yoller’s evidence of a base price of $175,000 plus the extra amounts for HVAC and the hot water system, which I find was communicated to the Koropeskis in January 2014. While Mr. Yoller did indicate there may have been another item that increased the price further, he could not say what it was or the price for it. Superior has proven a contract price of $183,500 and no more.

What is the Scope of Work?

[56] I find that the Plaintiff has satisfied me that the scope of work was to complete the project in accordance with the October drawings, to the point of painting the drywall, with the additions of an HVAC system and hot water on-demand system. I accept that the Defendants were to complete all finishing work, including the kitchen cabinetry. I do not accept that there was a clear understanding that this was to be a turn-key project.

[57] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, at para. 47, the Supreme Court of Canada noted a trend towards adopting common-sense approaches to the interpretation of contracts. While Sattva was decided in the context of a written contract, a similar principle applies to this case.

[58] It simply does not make sense that a contract would be entered into between a contractor and homeowner, to deliver a completed home addition and renovation inclusive of a finished kitchen, bathroom, and flooring, without any discussion whatsoever as to the homeowner’s expectations for those finishings and what would be required to install them or complete the work. These would be important discussions in the determination of price. It also does not make any sense that if the discussion was for the homeowner to complete these items and receive a credit from the contract price, that there would be no discussion as to what those amounts were. Ms. Koropeski’s evidence was that she simply assumed there would be a standard amount fixed for these items. Again, I do not accept this. These are not small items, like painting is. Kitchen, bathroom and flooring can be significant, even if it was contemplated that only the installation for these items would be completed.

[59] What the parties can agree on is that the Defendants were going to purchase the kitchen cabinets themselves, bathroom fixtures and flooring. The parties never specifically discussed these finishings as being part of the contract. Ms. Koropeski’s evidence was that she did not specifically communicate to Mr. Yoller that she expected a credit for purchasing these items herself. I found her evidence confusing as to the extent that she did expect a credit; whether it was for materials or just labour for installing these items. Her evidence is that she did not even decide on the finishings until the Spring of 2014, months after the contract was entered into. Even at a meeting in the Spring of 2014 when the parties met to discuss the project, despite Ms. Koropeski’s evidence that they discussed the type of finishings they were purchasing, again there was no discussion of what the credit would be against the contract price for these items or for the labour associated with them if they installed them themselves. There is no claim in the pleadings for a credit for these items (i.e. flooring installation) and no evidence as to the cost. All of the evidence overwhelmingly supports the Plaintiff’s interpretation of the scope of the contract.

H.S.T.:

[60] The Defendants argue that H.S.T. was included in the amount quoted. The Plaintiff disputes this and asserts that the price was exclusive of H.S.T.

[61] This issue was canvassed in King Road Paving and Landscaping Inc. v. Plati, 2017 ONSC 557, 2017 CarswellOnt 1712. At paragraph 77 of the decision, Charney J., concluded that when a contract for goods and services is silent with respect to H.S.T., there is an inference that the price does not include tax and that H.S.T. will be added to the quoted price. I agree with this conclusion.

[62] The parties acknowledge that there was no discussion of H.S.T. when they discussed the contract price. Mr. Yoller testified that H.S.T. is always extra, over and above the quoted amount. The Defendants’ expert testified that this is the industry standard.

[63] In support of Superior’s position, it points to the estimate it provided to the Koropeskis’ bank for financing purposes, which indicates that H.S.T. is to be added to the price. While normally this might have alerted the Koropeskis to the fact that they had misunderstood the treatment of H.S.T., the document is not reflective of either party’s position with respect to the actual contract price. Mr. Yoller’s evidence was that he inflated the estimate somewhat to try to help the Koropeskis secure financing. I have not relied on this document in determining the H.S.T. issue.

[64] The Defendants argue that the following evidence demonstrates an understanding by the parties that H.S.T. was to be included in the contract price, or at the very least this was ambiguous, with such ambiguity being resolved in favour of the Defendants:

a. An invoice summary dated November 4, 2014 that shows total payments to date of $105,000, with the phrase “tax included” marked next to the payment amounts and allocated as $92,920.35 to the Project price and $12,079.65 to “taxes”.

b. A handwritten document calculating the amount remaining owing after $105,000 had been paid by cheque and $40,000 by cash. The document indicates that $129,505 of the $187,000 contract price was “taxable” after crediting the Koropeskis for $17,495 for work not done and $40,000 “cash” payment. The Defendants argue that the line in the document indicating that “Remaining to Pay: $41,340.65...HST included”, supports their interpretation of the contract that H.S.T. was included in the price.

c. An invoice dated February 28, 2015, calculates the balance remaining owed on the contract based on $187,000 less $17,495, with tax payable on the full balance of $169,505. This invoice is contrary to the handwritten document that only calculated tax based on $129,505. The Defendants also argue that it contradicts the November 4^th invoice, creating confusion and ambiguity.

[65] As with the contract price, it is not difficult to understand how confusion has arisen. The handwritten records of Superior with respect to the contract are at times inconsistent and difficult to interpret. Having said this, I do not agree with the Defendants’ position.

[66] I do not find the invoice summary dated November 4, 2014 indicative of an understanding that H.S.T. is included in the contract price. That invoice simply allocates portions of the lump sum payments made to the contract price and to tax.

[67] The contradiction between the handwritten document and the February 28, 2015 is more troubling. The February 28, 2015 invoice, which I acknowledge was prepared after the relationship between the parties broke down, calculates H.S.T. payable on the total contract price, while the handwritten document suggests it was only payable on a portion (all but $40,000). The handwritten document is undated but appears to be calculating the final bill owing by the Koropeskis. The fact that this document calculates tax payable only on a portion of the contract price, and that the Koropeskis paid some amounts in “cash” leads to a question of whether there was a “cash/non-taxable” component to the contract. Having said this, neither party argued this position. The positions of the parties were that H.S.T. was either entirely inclusive or entirely exclusive of the contract price. None of the parties testified there was any discussion about a non-taxable component. Their evidence was that there was no discussion about the H.S.T. at all. That being the case, and applying the principles set out in King Road, I find that H.S.T. was not included in the contract price.

Total contract value and amount unpaid:

[68] I find that the Plaintiff and the Defendants had a contract for $183,500 plus H.S.T., for a total price of $207,355.

[69] With a payment of $145,000 the balance owing on the total contract price is $62,355, subject to any credits for work not completed or completed deficiently.

What are the extras?

[70] In addition to the amount outstanding on the Contract, the Plaintiff advances a claim for extras in the amount of $29,865.29 plus H.S.T.

[71] None of the extras claimed were reduced to writing. There are no emails, text messages or other communications confirming any discussions with respect to the extras. For the most part, prices were not discussed either. There being no contract for the extras, the claim for these items must proceed on a quantum meruit basis.

Legal Framework:

[72] “Extras” are items that are not provided for as part of the scope of work of the contract. Extra work, that entitles a contractor to additional payment over and above the Contract price must be work that is substantially different from, and wholly outside the scope of the work that is contemplated by the contract: See King Road Paving, at para. 97.

[73] The onus is on the contractor to prove the following with respect to claims for extras:

a. That the extra claimed was not within the scope of work to be performed under the contract;

b. That there was a promise, express or implied, to pay for the work. This has been found to include situations in which the owner does not provide specific instructions but knows that the contractor is doing the extra work or supplying the extra materials; and

c. That the work has been done or materials purchased and if so, the value?

See King Road Paving, at paras. 92, 96 and 97.

Quantum Meruit:

Applicable Legal Principles:

[74] If there is an express or implied agreement for extra work, but no price is agreed upon for the performance of the work, there is no contractual basis for a contractor to claim for the work performed, but the court may “imply a promise to pay a reasonable amount on a quantum meruit basis: See D & M Steel Ltd. v. 51 Construction Ltd., 2018 ONSC 2171, at para. 58.

[75] The party claiming quantum meruit must establish that they have conferred a benefit to the other party, that the conferring party suffered a corresponding deprivation, and there is no juristic reason for the deprivation.

[76] The onus is on the contractor to prove both the existence and the value of the extra work or risk not recovering: See Barenco Inc. v. Ottawa-Carleton Regional Transit Commission (1999), 48 C.L.R. (2d) 200 (ONSC) at para. 27, and D & M Steel Ltd., at para. 93.

[77] The payment sought must be reasonable remuneration. For the assessment of reasonable remuneration, expert evidence is often desirable but not necessary: See Hugh’s Contracting Ltd. v. Stevens, 2014 BCSC 1904, at para. 84, reversed on other grounds at 2015 BCCA 491.

[78] The court must do the best it can in determining a fair and reasonable fee for the service provided, by assessing what it was worth having regard to the relevant circumstances. Some factors to consider in valuing a quantum meruit claim include the course of dealings between the parties, any estimates obtained, the costs incurred, the scope of work, the actual work done, and the market value of the services provided: See Hugh’s Contracting Ltd. v. Stevens, 2015 BCCA 491, at para. 33.

Analysis of the Extras claim:

[79] The parties have prepared a “Scott Schedule” with respect to the extras claimed by Superior, along with the deficiencies claimed by the Koropeskis. The Scott Schedule is attached to this decision as Schedule “A”. Extras are reflected in Part “B” of the Scott Schedule.

[80] My findings with respect to the Scott Schedule items are as follows:

a. Scott Schedule Item #B1 – Install sump pump, pit, and drain - $900 - not allowed

The Plaintiff argues that the contract price and scope of work was determined based on the October 23, 2013 drawings. All parties acknowledge that the sump pump and pit were not reflected in the drawings but were added to the stamped drawings by the City of Thunder Bay as part of the building permit/approval process. The Plaintiff argues this item could not have been included as part of the original contract price and scope of work given it was not included in the drawings. When the drawings were amended and approved by the City of Thunder Bay in April 2014, the sump pump was added as a requirement of obtaining the permit. Mr. Yoller did not discuss this addition with the Koropeskis, nor did he discuss the cost. His approach was that it had to be done and “it was going to cost what it was going to cost”.

The Defendants argue that regardless of whether the sump pump and pit were shown explicitly on the drawings or not, the drawings specify that all construction is to comply with the Ontario Building Code 2006. Superior should have known this was a required element of the build, even if not reflected on the drawings.

The Plaintiff argues that it is only required by the Code if the existing home does not already have one. This was never discussed. I find that it was incumbent on Superior, as the contractor with knowledge of these items, to make these inquiries of the homeowner and not for the homeowner to have to know what information to volunteer. As such, I find that this was within the scope of work of the contract.

b. Scott Schedule Item #B2 – Supply an egress window for basement - $230.29 – allowed

The egress window was not reflected on the drawings but added by the City of Thunder Bay after the fact. A different type of window was reflected on the drawings. This additional cost did not form part of the contract. The amount claimed is the difference between the quoted window and window ultimately supplied. The cost was incurred by Superior, and even though not specifically discussed with the Defendants, was a necessary and reasonable cost.

c. Scott Schedule Item #B3 – Open up laundry wall to expose drainpipes and re-plumbing to bring to Code and re-drywall - $810 – not allowed

The Plaintiff abandoned this item after acknowledging it was never discussed with the Defendants, nor could they have known this work was being done.

d. Scott Schedule Item #B4 – Engineering costs associated with updated drawings - $1,080 - $830 allowed

Engineering drawings were required for the purpose of the HVAC system. The evidence of Mr. Yoller was that the Koropeskis were attempting to secure the building permit themselves when he quoted them in January 2014. However, they ran into difficulties thereafter with the process because they did not have the engineering drawings required for the building permit for the HVAC system. Mr. Yoller assisted them, but it was never part of the original contract. Superior paid this cost out of pocket.

The evidence of the Koropeskis is that it was agreed at the January 23, 2014 meeting that Mr. Yoller would secure the drawings as part of the contract price while Mr. Koropeski would physically obtain the permit.

I prefer the evidence of Mr. Yoller on this issue and find that the engineering drawings were not part of the original contract. Even if this issue was raised and decided at the January 23^rd meeting as the Koropeskis allege, Mr. Yoller could not have had an opportunity to assess the price and quote on it.

With respect to the amount, this is more troublesome. Mr. Yoller’s records show that the out of pocket cost for this time was $580. In addition, he charged $500 for his labour (10 hours, at $50 per hour). There was no explanation as to why 10 hours of time was required to coordinate these drawings with the engineering firm. While I accept that some time was required, in the absence of evidence as to why so much time was required, on a quantum meruit basis I find that 5 hours of labour ($250) should have been sufficient to compensate Superior for Mr. Yoller’s time.

e. Scott Schedule Item #B5 – Remove baseboards, repair walls, prime before drywall patching (original house) - $900 - allowed

The Defendants conceded at trial that this goes beyond the original scope of work, but they contest the value of work. The Defendants estimate that the value is $200. Their estimate is based solely on how long Mr. Koropeski believed it should take to perform this work. Mr. Koropeski has no specialized knowledge in this area. Mr. Yoller’s charge is based on material and labour costs. I find that the amount is reasonable.

f. Scott Schedule Item #B6 – Siding material and insulating the original house - $5,850 – allowed (subject to the total credit of $5,400 allowed by the Plaintiff for unfinished portion of soffit, fascia, eaves and siding)

I find that this is an extra. The siding and insulating of the original house were not contemplated by any of the drawings. The Defendants’ expert, Mr. Alan Cooke confirmed this. The drawings specifically state that the siding on the new addition is to match the existing siding, and not that the existing siding will be replaced. It was not even discussed until the Spring of 2014. This was not contemplated by the original contract.

With respect to the amount, Mr. Yoller’s evidence was that $5,600 was his actual cost for the material, with the remaining $250 being for his time for measuring, planning, ordering and receiving materials. I find the amount reasonable.

g. Scott Schedule Item #B7 – Removal of brick chimney and install B-vent chimney to facilitate better placement of beam - $390 – not allowed

The Plaintiff acknowledged at trial the Defendants were not aware of this item. The Plaintiff abandoned this claim in closing submissions.

h. Scott Schedule Item #B8 – Removal and replacement of roof shingles for original house - $4,100 – allowed

Similar to the siding, this was not contemplated by the October drawings. The evidence of the parties was that this was not discussed until the Spring/early summer of 2014. This work was requested by the Koropeskis. It could not have been contemplated as part of the original contract. I find that this is an extra.

I also find the amount claimed reasonable. Mr. Yoller’s evidence was that his cost, charged by the subcontractor was $3,850. He provided some assistance to the roofers and had clean-up costs associated with the work. The additional $250 charged over and above Superior’s out of pocket costs is reasonable.

i. Scott Schedule Item #B9 – Demolition of kitchen and bathroom - $800 – not allowed

I find that this was part of the original scope of work. The October drawings reflect demolition work for the bathroom and kitchen. I have the impression that the demolition in the kitchen went beyond the scope contemplated by the drawings, but the evidence is not clear on that. I also found Mr. Yoller’s evidence confusing with respect to whether this was an item for which it was agreed there would be credit if the Koropeskis performed it. The Plaintiff has failed to satisfy the burden of proof with respect to this item.

j. Scott Schedule Item #B10 – Remove lath and plaster and add sheet rock and insulation in the kitchen - $1,950 - allowed

The October drawings indicate that the existing kitchen is to remain, save and except that a portion of the existing wall and window were to be demolished. I accept that the Koropeskis asked, after the fact, to have everything stripped down to bare studs, which is not contemplated by the drawings. I find this to be an extra.

The amount charged is based on $400 for materials and $1,550 for labour. I find the amount reasonable given the scope of work.

k. Scott Schedule Item #B11 - Change electrical box from single to double in kitchen - $100 – allowed

The Defendants acknowledge that this was requested as an extra, but they take issue with the fact that the work was not performed by a licensed electrician. There is no evidence of deficiencies in this work. The work was done, the amount claimed is nominal. I find the cost reasonable.

l. Scott Schedule Item #B12 – Nail and screw down loose plank flooring in the kitchen - $350 and Scott Schedule Item #B13 – Shim and install 5/8 plywood - $400 – amount allowed is $469

The Defendants admitted this was an extra in a document prepared by them entitled “Response to Extras” (Exhibit #48) and admit that $400 is owing.

I find that the Plaintiff has not proved that an amount of $750 is reasonable. In Mr. Yoller’s handwritten breakdown of the cost of extras (Exhibit #15) he has $450 showing for labour, but nothing for materials. A materials list shows a charge of $114 for 6 sheets of 5/8 plywood, which translates to a cost of $19 for one sheet. I find that the amount proven by the Plaintiff is $469.

m. Scott Schedule Item #B14 – Install backing and kitchen cabinets - $2,200 - allowed

I find that the installation of the kitchen cabinets and finishings were outside the scope of the original contract. This is an extra. The amount is reasonable. Mr. Koropeski’s evidence was that it took a week for the cabinets to be installed, which is consistent with Mr. Yoller’s time diary.

n. Scott Schedule Item #B15 – Level bathroom floor - $750 – not allowed

At trial, Mr. Yoller acknowledged that the Koropeskis never requested this work and were not advised it was being done. He could not say they were aware of the work at all. This claim has been abandoned by the Plaintiff.

I would not have found this to be an extra in any event as the drawings contemplate making the flooring “good”.

o. Scott Schedule Item #B16 – Modify plumbing for vanity in upstairs bathroom - $60 – allowed (agreed to by the parties)

p. Scott Schedule Item #B17 – Add bathroom fan and exhaust - $450 - allowed

This is not provided for in the October drawings. The drawings have in the legend a symbol for exhaust fans, but that symbol does not appear in the bathroom plans. Mr. Cooke’s evidence is that usually the drawings would include a fan/exhaust. With the installation of a HVAC system, the Defendants’ expert confirmed the Plaintiff’s evidence that a fan and exhaust was not required. Part way through the project the Defendants decided that while they would rough-in the HVAC, they were not going to complete it. I accept that they decided after the contract was negotiated that a fan was required. I find that the $100 charged for materials and $350 for labour is reasonable.

q. Scott Schedule Item #B18 – Build out shower wall and shelf area in upstairs bathroom - $300 - allowed

The parties agree this is an extra but disagree as to the value. The Defendants estimate a value of $150 for this item. I accept that Mr. Yoller kept records, albeit loose ones, of time spent. Mr. Koropeski’s estimate as to the time that should have been required for this work is based solely on his lay-person’s opinion. There was no evidence suggesting that Mr. Koropeski has the required knowledge or expertise to price this item. The amount claimed is reasonable.

r. Scott Schedule Item #B19 – Build tub stud wall - $500 – allowed

The parties agree this is an extra but disagree as to the value. Again, the Defendants take the position that $150 is adequate. For the reasons set out in (q) above, I find the amount reasonable.

s. Scott Schedule Item #B20 – Open up hall closet to height - $300 – allowed

The parties agree this is an extra but disagree as to the amount of time to complete the work. The Defendants argue that $50 is sufficient. For the reasons set out in (q) above, I find the amount reasonable.

t. Scott Schedule Item #B21 – Frame closet in main bedroom - $350 – allowed

This is an agreed extra, but the amount is in dispute. In the Scott Schedule the Defendants take the position that $125 is a reasonable cost. In Exhibit #47 they take the position that the value of the work is $286.50. The work was performed, and I find the cost is not unreasonable given Mr. Yoller’s description of the work of framing, sheeting, mudding and taping required.

u. Scott Schedule Item #B22 – Remove old ceramic tile and install underlay in main floor bathroom - $225 – $25.00 allowed

It is not clear to me whether this is required by the October drawings or not. The drawings indicate that the existing bathroom fixtures were to be removed, and walls, floors and ceiling prepared for new construction. This could include the removal of the old ceramic tile but not likely the underlay, which is part of the flooring that was the responsibility of the Koropeskis. I accept that the Defendants asked the Plaintiff to install the underlay. I find that the Plaintiff has not satisfied the burden of proof with respect to the removal of the old ceramic tile but has with respect to the underlay.

The material costs for this item are $25. I infer that this is for the underlay and allow this amount. I do not know what portion of the labour costs are attributable to the underlay and which to the removal of the tile, and therefore make no allowance for labour.

v. Scott Schedule Item #B23 – Install laminate beam in mud room ceiling - $2,800 – allowed

I find this item to be an extra. The evidence of the Plaintiff is that the subcontractor performing work on the trusses identified this as an item that was required to be added to the plans in the early Spring 2014. It was acknowledged by Ms. Koropeski in her evidence at trial that this item was not added to the drawings until after January 23, 2014 and therefore, this item could not have formed part of the scope of the contract entered into at that time.

The value of this item is more challenging. The amount claimed comprises of $388 for material costs (the beam), with the balance attributable to labour. Labour includes co-ordination of this issue with the subcontractor and attending to have the drawings revised. I am satisfied that this was labour intensive and that the charge is reasonable.

This item is the subject of a deficiency claim. While I recognize that as an extra, any defects in the work should be considered as part of the analysis of the value of the quantum meruit claim. For ease, I have analyzed the deficiency claim below, using the same structure as the parties in the Scott Schedule.

w. Scott Schedule Item #B24 – Change closet to 85” RO in mud room - $950 - $300 allowed

The Plaintiff’s evidence is that this was an extra requested by the Defendants, who required the existing closet door openings changed to accommodate the size of doors they had purchased. This was not contemplated by the October drawings. The Defendants deny that the work was done at all. Mr. Koropeski testified that the existing opening is 82” and has not been changed.

In the absence of photographic or other evidence to the contrary (Mr. Cooke also does not comment on this), I am satisfied that the work was done. If other door openings had to be changed to accommodate the size of the doors purchased by the Defendants, it only stands to reason that this one would have been done also. There is a notation in the Plaintiff’s records for 85” closet RO, but it is not clear to me which room it is for. This was not work contemplated by the October drawings. I find it to be an extra.

With respect to the value, there was no evidence to assist me in understanding why changing certain certain closets and doorways cost more than others. I did not see any time entry applicable to this item, but merely a notation of 17 hours in total for the day the work was performed. Other work was also performed that day.

I find that the Plaintiff has not proved the $950 value for this item. To open up the hall closet to the proper height the Plaintiff charged $300. In the absence of evidence showing why this item took longer, or was otherwise more expensive to complete, and breaking down the materials costs, I find that the value of this extra is $300.

x. Scott Schedule Item #B25 – Raise door header in closet outside of mud room - $1,000 – $300 allowed

The Defendants do not dispute that this work was done or that it was an extra. They do dispute the value of the work and claim it should be $25.00. For the reasons set out in (q) above, I do not accept the Defendants’ estimate. For the reasons set out in (w) I also do not accept that the full amount of the Plaintiff’s claim has been proved.

y. Scott Schedule Item #B26 – Install underlay in mud room - $320 - allowed

The Plaintiff argues that flooring was not within the scope of work but was required as part of flooring that was the responsibility of the Koropeskis. The Koropeskis argue that the requirement for underlay was necessary because of the way the Plaintiff connected the new addition to the old part of the home. They argue that this was not an extra, but work required to “make good walls, floor and ceiling”.

I prefer the evidence and explanation of the Plaintiff that underlay is akin to flooring and was not required as part of the drawings. I find this was an extra.

With respect to the value of the claim, the Plaintiff attributes $120 to materials and $200 to labour. I am satisfied that this is reasonable.

z. Scott Schedule Item #B27 – Install fixtures, lower toilet in main floor bathroom - $1,500 - allowed

It is not disputed that this work fell outside the scope of the contract. The Defendants dispute that the work was done and argue that they performed this work.

Mr. Yoller testified that originally this work was to be performed by the Defendants, but they asked him to do it. He has a specific recollection of fitting the vanity and having to cut the cabinet to make the sink fit. He could not recall if he installed the sink. He also recalls and has a note in his time diary on December 4, 2014, for “lowering the flange and prepping the new toilet for the floor”. His notes indicate that 8 hours of time were spent. Mr. Yoller testified that the plumber would have charged for his time and the amount reflects Mr. Yoller’s charges for his own time.

I prefer the evidence of Mr. Yoller that the work was done. It is consistent with his notes. I also note that there is a deficiency claim with respect to the location of the flange installed by the Plaintiff. It is likely that the Defendants installed other fixtures in the bathroom and with the passage of time confusion has arisen as to who did what work.

With respect to the amount, the Plaintiff claims $1,300 for materials and $200 for labour. Presumably the plumber’s charge/disbursement is counted as “materials”. The notation indicates that one hour of time has been discounted from the charge. I find that the claim is reasonable, subject to an analysis of the deficiency claim.

aa. Scott Schedule Item #B28 – Work bench lights - $300 - allowed

The Defendants acknowledge that this item is an extra but claimed that the amount is excessive and should be $200. The material cost alone was $150. I find the amount reasonable.

[81] Based on the foregoing, I find that the value of the allowable extras total $24,134.39 plus H.S.T., for a total of $27,271.86.

[82] The sum of $89,626.86 is owed by the Defendants on account of the balance of the main contract and extras, subject to the appropriate deduction for deficiencies and incomplete work.

Who Breached the Contract?

[83] A determination of the party who breached the contract is necessary to properly determine the amounts recoverable by each.

[84] The Plaintiff argues it was the Defendants who breached the contract by withholding payment and refusing to allow the Plaintiff to correct those deficiencies it agreed with. The Plaintiff further argues that the Defendants also failed to act reasonably by refusing to discuss the issues and negotiate a resolution, and ultimately by terminating the contract.

[85] The Defendants argue that it was the Plaintiff who breached the contract by virtue of the nature and number of deficiencies in the work performed. The Defendants deny that they acted unreasonably in failing to allow the Plaintiff to correct the deficiencies and by refusing further payment. The Defendants argue that for the following reasons, they were justified in losing trust in Superior:

a. Despite repeated requests, Superior failed to provide any type of update as to the status of their account. Had Mr. Yoller done so, the parties may have been able to avoid some of, albeit not all, of the current dispute.

b. Superior’s accounting practices are unreliable and have contributed to confusion and loss of faith. For example:

i. On January 4, 2015 the Koropeskis were presented with a bill for $102,573;

ii. On January 28, 2015 the bill was $78,941.40;

iii. The breakdown of costs accompanying the January 28^th account is duplicitous, containing grossly inflated and unreliable figures, some of which are crossed out and re-written. The Koropeskis argue that they are re-written to match the amount that Superior now wishes to recover; and

iv. On February 28, 2015 the Koropeskis were presented with a new account for $85,823.23, which contained an interest charge of 2% monthly that was never before discussed.

c. Mr. Yoller persisted in attending at the property to try to correct deficiencies despite the Koropeskis advising him on February 25, 2015 (and prior to this verbally) that they wanted time to further investigate the deficiencies and cost of rectifying them.

d. Even after all the disagreements between the parties, culminating in Superior threatening lien action, and despite the Koropeskis asking for time, Mr. Yoller still caused to have lumber delivered to the property in April 2015 to repair the deck. The Koropeskis argued that this was done solely to preserve Superior’s claim for lien and went contrary to their wishes to wait for their further instructions.

[86] As I said earlier, I have some sympathy for the Koropeskis’ position. The records of Superior are confusing at times, and had an account summary of the amount remaining owing been provided after each payment, at least early in the contract the parties may have been alerted to the fact that they had a misunderstanding as to the scope of the contract and total price.

[87] Having said this, I do not find that Superior’s business practices caused a breach of the contract. This was a fixed price contract. Superior was under no obligation to provide a breakdown of what each item cost, which is what was requested by the Koropeskis. Had Ms. Koropeski wanted to know what amount she could expect as a credit for work they were doing themselves, then asking specifically this question would have been a more reasonable approach.

[88] I am also satisfied that despite the confusion in some of the accounts and documents, a review of those documents reveals where the discrepancies lie. For example, the $102,573 did not provide credit for work not yet performed, as the relationship had not yet broken down and it was reasonable for Mr. Yoller to assume at this point that he would continue to finish the contract. The February 28^th account shows the interest charges that were now being added as a result of the failure to make further payments or discuss the issue further. While these explanations may not fully account for the discrepancies, they largely do. Being willing to discuss the differences could have resolved other discrepancies.

[89] With respect to the deficiencies, mere bad or defective work will not entitle an owner to terminate a contract. The deficiencies must be of such significance that they amount to breach of contract, or it becomes evident that the contractor is not willing or able to perform the work. This becomes a fundamental breach on the part of the contractor. See: C.S. Bachly Builders Ltd. v. Lajlo, 2008 CanLII 57444, at para. 84 and Goldsmith on Canadian Building Contracts, 4ed (Toronto: Carswell, 1989), p. 6-4.

[90] Fundamental breach is an exception to the requirement that a contractor be provided with a reasonable opportunity to correct defects. Based on my analysis of the deficiencies, I do not find a fundamental breach on the part of the contractor. I also find that while Mr. Yoller did not agree with all the deficiencies, some of which pertained to extras and not contract items, he was willing to work with the Koropeskis to try to work out a mutually agreeable solution.

[91] Disputes arise with construction contracts. The courts commonly see disputes such as those that have arisen in this case with respect to price, scope of work, extras, and deficiencies. When disputes arise, parties have a duty to act reasonably to try to resolve the disputes.

[92] The parties met on January 28, 2015 to discuss the account and the new list of deficiencies. Mr. Yoller’s evidence, which I accept, is that after this meeting it became increasingly difficult to attend at the property to correct any issues as a result of the restrictions placed by the Defendants. While he may not have been in agreement with all of the issues alleged by the Koropeskis, he was willing to try to work on a solution with them; they were not. Clearly from the February 25^th correspondence of the Koropeskis, they did not want Superior at the property anymore. They asked for time to investigate matters further. Superior attempted to propose a resolution with a reduction of its account, but the Koropeskis did not negotiate. Two further discussions with them suggested they were dug-in with respect to their position they did not owe further money. In response to Superior’s attempt to correct outside deficiencies in the Spring of 2015, the Koropeskis terminated the contract. I find that the Defendants did not act reasonably in terminating the contract and refusing to permit Superior the opportunity to rectify the deficiencies.

[93] The Defendants argue that this case is analogous to Cornerstone Select Properties Inc. v. Matthews and Matthews v. Varcoe, 2018 ONSC 679. The Defendants argued that based on this case, a property owner does not have to afford a contractor an opportunity to correct deficiencies when there is a genuine reason for the owner of the property to not trust the contractor. In that case, the court found that the contractor’s carelessness and lack of attentiveness to his client had rendered the ongoing relationship impossible. The facts are distinguishable from the case at hand. In Cornerstone, not only was there some confusion in the accounts, the entire project was in chaos. The contractor had begun work without securing the necessary permits and approvals, continued work with the necessary inspections, when a building inspector did arrive on the property a “stop work order” was issued, there were constant change orders, responsibility was being placed on the property owners for items that should have been undertaken by the contractor and the contractor was evasive when it came to responding to concerns. These are not the circumstances in this case.

Deficiencies and Incomplete work:

[94] The Defendants claim the sum of $40,300 plus H.S.T. on account of the incomplete and deficient work. They allege 37 deficient or incomplete items.

[95] The Defendants’ breach of contract and refusal to allow Superior to properly inspect and rectify the deficiencies precludes them from recovering their cost to complete incomplete items and fix deficiencies. This does not mean that the Defendants must be left with incomplete or defective work without remedy.

[96] It is an implied term of any contract for services that work shall be completed in a good and workmanlike manner, meaning that the work done is fit for the purpose. See: Cornerstone Select Properties Inc. v. Matthews, at para. 120; Klondike Contracting Corporation v. Abadian, 2021 BCPC 145, at para. 124.

[97] The Defendants are still entitled to some credit for incomplete or defective work. They are still entitled to make a claim but must accept the consequences of their failure to mitigate their damages by refusing to allow the contractor to correct the deficiencies.

[98] The challenge in many construction cases is determining the amount of the credit for incomplete or defection work. This is particularly so in cases of breach by the Defendants when they are not simply entitled to their cost to repair or complete, and when Defendants have completed work themselves. In this case:

a. The Defendants’ expert provided his estimates for the cost to repair or complete deficient work. His evidence forms the basis for the amount claimed by the Defendants. His evidence was that his costs were based on labour and material costs. He estimated $45 per hour for a labourer. There was no estimated as to the hours required for completion, or the breakdown between labour and materials. These were estimates only and items were not specifically costed out.

b. Mr. Koropeski testified as to rough estimates of time spent by him, with the assistance of family members or family friends. Some documents were provided for material costs. The challenge with Mr. Koropeski’s evidence is that at times, he provided ranges for his estimates. While he testified that he had kept records of the time spent, presumably made contemporaneous with performing the work, the Plaintiff complained that these records were not disclosed, and they did not form part of the evidence at trial.

c. The Plaintiff did not provide evidence as to his cost to repair the alleged deficient or incomplete items in accordance with the recommendations of Mr. Cooke or otherwise. I do not know what portion of the $50 – 66 per hour labour costs budgeted for the project represent actual cost and represent profit, which is relevant only to assisting in a determination of the appropriateness of credits.

As a result of these evidentiary issues I am left to apply a rough justice approach to the determination of the appropriate credits by applying my best estimate as to the appropriate amount, based on the evidence I do have.

[99] The Plaintiff acknowledges that the following amounts should be credited to the Defendants:

Incomplete soffit, fascia, siding (exterior finishing) $5,400

HVAC (not completed at request of Defendants) $2,295

Hot water heater $3,500

Paint and stain (completed by the Defendants) $5,800

Grades, decks and landscape (unfinished portion) $ 500

Total $17,495

H.S.T. $ 2,274.35

Total credit plus H.S.T. $19,769.35

[100] Otherwise, the Plaintiff argues that the Defendants have failed to establish that the alleged deficiencies or incomplete work are within the scope of the contract, is deficient or incomplete, and/or the amount of the claim is unproven.

The Alleged Deficiencies and Incomplete Work:

[101] Mr. Alan Cooke is an expert retained by the Defendants to examine the deficiencies. He is a red seal carpenter, architectural design technician, certified engineering technician. His business is home design and build. He testified at trial as to why certain items were deficient. He was provided with a list of deficiencies by the Defendants at the time of his inspection, and he inspected the property personally.

[102] Mr. Cooke’s evidence was that for the most part, and subject to a few exceptions, work was completed according to Code. He indicated that there is one structural item, but otherwise the issues are primarily related to workmanship.

[103] The alleged deficiencies and my findings are as follows:

a. Scott Schedule Item #C1 – Grading not completed around the new addition – $1,500 - $500 allowed

Mr. Cooke’s evidence is that the rough grading was completed in accordance with Code so that the grading was brought level around the house. He acknowledged that there was no site grading plan provided for this build. He testified that final grading, sloping drainage away from the house was not completed to Code. The Plaintiff argued the final grading and landscaping was not part of the scope of work as it was not included in the drawings and not required to pass inspection. Alternatively, Superior argues that final outside work could not have been completed by them until the Spring of 2015 because of weather, but they were never given a chance to complete the work due to the termination of contract.

The drawings indicate around the outside of the building “grade”, but do not specify how the grading was to be done. Mr. Cooke testified that specific grading plans were not required for permit at the time of this build. Based on the drawings and the evidence of Mr. Cooke I find that final grading in accordance with Code was part of the scope of work. Mr. Cooke’s description of the evidence was that this was more than merely landscaping to make the area aesthetically pleasing, as was Mr. Yoller’s evidence. This was required for proper drainage.

With respect to the amount of the credit, this has not been proven to be $1,500. Mr. Cooke’s evidence is that this amount would include equipment, materials, and labour, but there was no breakdown as to each of these elements. Mr. Koropeski’s evidence is that he did the work himself and spent 100 hours between this item and item C2 but could not provide a breakdown between the two. He advised that the 100-hour estimate included time spent by others assisting him, but I agree with the Plaintiff that they are not parties to the litigation and there is no evidence they were paid. This time estimate would also significantly exceed the amount calculated by Mr. Cooke, which also included equipment and materials. There is no evidence of any equipment or material costs. $12,000 is the total cost allocated to decks and grading by Superior for the entire project. In the absence of evidence to the contrary I find that $500 is sufficient credit for the remaining grading work.

b. Scott Schedule Item #C2 – Demolition debris not removed from site - $800 – $300 allowed

Mr. Yoller acknowledged that old back porch steps and other debris remained on the property. The Plaintiff argues that removal of debris was not within the scope of work, but he offered to remove some debris in the Spring of 2015. The Defendants refused to allow him back to complete the project. The tree stump removal was not part of the original scope of work but requested by the Koropeskis in May 2015.

I accept that removal of some debris from the site is an expected part of the contractor’s obligation under the scope of contract, but not all the debris alleged in this case. The tree stumps were not part of the contract. I accept that removal of the porch steps and other construction related debris was, but that Superior provided a solution to the Koropeskis earlier in the contract of burying the steps, which they rejected.

Mr. Yoller’s evidence was that he was intending on doing some debris removal in the Spring. I do not have evidence as to his cost. The Koropeskis have evidence of total landfill charges of $91.10 and equipment rental to break up the debris of $79.10. Recognizing that not all these charges are for work within the scope of the contract, and not having clear evidence as to the time spent on this task, I find that $300 is a reasonable allowance for this item.

c. Scott Schedule Item #C3 – Old foundation does not match the new addition - $1,500, Scott Schedule Item #C4 & 5 – Parging on the foundation is cracking and is incomplete under the stairs - $2,500 - $750 allowed

These items all relate to the parging or finishing of the foundation. Mr. Cooke testified that the parging had not been applied properly or completely. I am satisfied that this was part of the scope of work and was a deficiency. Mr. Yoller’s evidence is that he would need to scrape it off and re-do it, although it is uncertain as to how long this would take. The Defendants’ out of pocket costs entered into evidence were $142.22. There were other receipts in the Joint Document Book marked for identification, but not entered into evidence.

As for labour, Mr. Koropeski’s evidence was that he and 2-3 people took between 40-50 hours to complete the work. I have no evidence whatsoever as to what portion of that related to Mr. Koropeski or how he tracked this. Part of this time also included repair of dimple board, which was not identified as a deficiency by Mr. Cooke. I do not know what the cost would have been to Mr. Yoller to conduct this repair.

I accept that this was a labour intensive job for lay people to complete. I find that a credit of $750 it appropriate for these items combined. This comprises the materials cost and my best estimate as to Mr. Koropeski’s time spent performing the work himself, and not the time of others (40 hours / 3 people). I appreciate that this is not an ideal approach but given the evidentiary deficiencies on this and other claims, I see no other option other than to entirely allow or disallow the claim. Neither of these approaches struck me as fair to either party.

d. Scott Schedule Item #6(a) – Soffit and fascia not completed - $3,600 and Scott Schedule Item #6(b) – Siding not completed - $8,000 - not allowed

Mr. Yoller acknowledged that this work was not completed. It was not planned to be completed until the Spring of 2015. The only portion of the unfinished work that is within the scope of the contract is the addition and not the main home. Superior has already provided a credit of $5,400 for these items, being the labour required to complete the job. The materials purchased by Superior were used to complete the finishing.

All exterior finishing work was completed by All Season Siding and Renovations at a cost of $12,991.68. This was the labour charge for the entire house. This suggests that Mr. Cooke’s estimate of $11,000 in total for the addition is excessive. Not having a breakdown of the portion paid to All Season for the original house (not within the scope of work) and the addition, I conclude that the $5,400 credit allotted by Superior is reasonable and that no further amount is required.

e. Scott Schedule Item #7 – Kitchen range hood exhausts above the patio door and needs to be relocated - $500 – not allowed

Mr. Cooke testified that the current placement of the exhaust will cause moisture and ice to accumulate at this location. Mr. Yoller says that the Koropeskis approved this venting plan to avoid the exhaust being vented over the deck. Mr. Koropeski recalled discussing the plan but argues it was not carried out as discussed.

Given that this plan was discussed with the Koropeskis, Mr. Cooke did not actually observe any ice build-up or damage, and there is no evidence of actual damage in the 6 years preceding trial, this item has not been proved to be a deficiency and is not allowed.

f. Scott Schedule Item #8 – Deck Stairs not built - $400 – allowed

The Plaintiff acknowledges that this work was not completed, as it was to be completed in the Spring of 2015. The Plaintiff argues that the $500 credit allowed as overall grading, deck and landscape is sufficient. There is no evidence as to how this amount was arrived at. I disagree that it is sufficient for all of the deficient items in this category. The amount claimed appears reasonable and is allowed.

g. Scott Schedule Item #9 – Deck railing loose and unstable - $2,500 – $650 allowed

It is acknowledged by the Plaintiff that the railing was lose and needed to be fixed. Mr. Cooke’s evidence was that it needed to be removed and reinstalled, and that the existing materials could be used. The Plaintiff attempted to do this work, but the Defendant returned the materials and terminated the contract.

This is a deficiency. The question becomes the appropriate amount to credit the Defendants. Mr. Cooke estimated the cost of repair to be $2,500. The evidence of Mr. Koropeski is that he did this work with the assistance of a family friend. His material costs that form part of the evidence were $678.76, and he estimates between 20 to 30 hours of labour for him and a family friend. There is no evidence that the family friend was paid, and that individual makes no claim. Superior’s material costs would have been $143.51, but I have no evidence as to labour costs. In the absence of reliable evidence, I have allowed one-half the labour time claimed, along with material costs that Mr. Yoller would have paid.

h. Scott Schedule Item #10 – Deck piers cracked and flaking - $800 and Scott Schedule Item #C33 – Exterior entrance support posts not secured to concrete piers - $350 - total allowed $1,150

Mr. Cooke’s evidence was that this work, for the most part was adequate, but there was some cracking and the work had not been finished by securing support posts to the concrete piers. There is no dispute this was part of the scope of work. Mr. Koropeski testified he spent an estimated 16 hours securing the posts to rectify item C33, which seems excessive given Mr. Cooke’s estimate of the cost of completing the work. There is no evidence of anything having been done to deal with the cracked piers, but Mr. Yoller testified as to what he would have done to correct it, which was consistent with Mr. Cooke’s recommendation. He did not testify as to the cost of that work and he did not comment on the support posts not being secured.

I accept Mr. Cooke’s evidence and find that these items were deficient / incomplete work. I am satisfied based on the work actually done that Mr. Cooke’s estimate with respect to C33 is reasonable. With respect to C17, simply because nothing has been done, does not mean that it should not be done. However, appreciating some of the challenges associated with Mr. Cooke’s evidence with respect to the cost of rectifying items, but noting it is not a significant item, I am satisfied that the amount is not unreasonable given what is required to repair this item.

i. Scott Schedule Item #11 – Sealant on top of patio door loosened and is falling off - $500 – not allowed

This was part of the scope of work. Mr. Yoller’s evidence was that temporary sealant was applied until the exterior finishing work could be completed by the finishing contractor in the Spring. Once this was done, the exterior finishing contractor would have sealed and flashed the area. This would have been done as part of the work claimed for in C6(a) and C6(b).

Mr. Cooke observed this in one location and concluded that interior as opposed to exterior sealant had been used. The Defendants replaced all sealant on all doors and windows despite a problem only having been identified in one location. The cost of sealant should have been minimal.

j. Scott Schedule Item #C12 – Frost forming on the underside of the peaked roof - $500 - $250 allowed

Mr. Cooke’s evidence at trial was that this problem is caused by insufficient venting of the roof due to the wrong ridge vent being installed by Superior. He relied on a series of calculations he performed to determine this, which the Plaintiff argues were never disclosed and could not be reviewed with Superior’s roofing subcontractor or challenged.

The evidence of the Defendants was that they rectified this issue by having a third- party contractor install additional vents in the roof. The Plaintiff argues that they installed vents as required by the drawings and that anything additional, is outside the scope of work.

Regardless of whether the calculations could be verified or not, the fact that there was frost observed suggests there is validity to Mr. Cooke’s concerns. I find this is a deficiency. The challenge is with respect to the amount. The amount claimed is an estimate of Mr. Cooke, despite the Defendant incurring an actual cost. I have no evidence as to this cost. I must infer from the failure to provide the invoice that it is less than the $500 estimate of Mr. Cooke.

This being a deficiency that had to be rectified, there should be some credit for this amount. In the absence of evidence proving the amount, I allow $250, being one-half Mr. Cooke’s estimate.

k. Scott Schedule Item #C13 – Low slope roof has not been completed as indicated on the drawings and per the Ontario Building Code - $800 – not allowed

It was the evidence of Mr. Cooke that because of the roof of the addition is a low slope roof, each shingle had to be tabbed. Having said this, in cross-examination he acknowledged he did not go on the roof during inspection and therefore could not confirm whether or not the shingles were actually installed properly.

The Defendants have not proved this item to be a deficiency.

l. Scott Schedule Item #C14 – Discharge pump from sump pump has not been completed properly - $350, Scott Schedule Item #C20 & 35 – Poor installation of sump pump and soil gas control not installed - $750 - $900 allowed

The evidence of Mr. Cooke was that the sump pump needed to be reinstalled properly with the sump pit properly vented. Mr. Yoller acknowledged that work to finish the sump pit was planned for the Spring of 2015. I am satisfied that the work related to the sump pump, including the pump itself was either deficient or incomplete. Superior claimed $900 as the value of work done related to the sump pump. He did not build any charges into the contract price for the sump pump. I appreciate that there was more work that had to be done, but given the challenges with the evidence, I have allowed a credit for the full $900 as a reasonable amount. The majority of this work was performed by Mr. Koropeski and his out of pocket costs were not significant.

m. Scott Schedule Item #C15 – Insulated concrete forms installed incorrectly - $1,500 – not allowed

The evidence of Mr. Cooke was that this did not compromise the integrity of the building but would make it more difficult for a drywall installer to fasten drywall to the forms. This, in turn, would make it more expensive for the homeowner to have the drywall completed. Mr. Cooke’s recollection is that the drywall was not installed at the time of inspection.

Mr. Koropeski’s evidence is that drywall was installed but the location of the insulated concrete forms that do not line up makes it more difficult to affix things to the wall. The Plaintiff admits that the forms do not line up. The challenge for the Defendants is that they have not suffered any additional cost associated with drywall as this formed part of the work performed under the fixed price contract with Superior. They also have not incurred cost to repair this item. They have failed to prove that any amount should be credited for this deficiency.

n. Scott Schedule Item #C16 – Poor air flow from heating system in the basement - $1,000 – allowed

This is part of the scope of work. Mr. Yoller acknowledged this concern and the subcontractor rectified the issue. Superior does not dispute the deficiency or the amount but takes the position that this is allowed for in the credits, but that is not clear to me. I have allowed this claim.

o. Scott Schedule Item #C17 & 22 – Insulation in main floor not properly installed and frost forming at bottom corners of walls in the addition - $1,500 - $556.00 (without H.S.T.)

There is no dispute that this was part of the scope of work. Mr. Cooke testified that this was a Code compliance issue with insulation had not been pressed up against the exterior sheeting, and that floor joist cavities had not been properly insulated. He testified that this can be rectified by pushing additional batt insulation into the cavity and pulling it forward. The Plaintiff disputes this is a deficiency, arguing that the insulation passed inspection.

I find this is a deficiency. I accept that despite passing inspection, the frost forming on the walls is indicative of an insulation problem. However, again, my challenge is attributing a proper value to this deficiency. Mr. Cooke’s estimate comes with no evidentiary basis on which to evaluate it. The Defendants took an approach not consistent with that recommended by Mr. Cooke. The Defendants removed the existing insulation and applied spray foam insulation, which is a more expensive product than the batt insulation required by the drawings.

Not knowing what it would have cost to push additional batt insulation into the cavity, I have allowed the Defendants’ material costs for the spray foam insulation, but not Mr. Koropeski’s time to prepare the area, given that this method constitutes betterment.

p. Scott Schedule Item #C18 – claim resolved

q. Scott Schedule Item #C19 – Air conditioner condensation pipe is disconnected at stack and plug put in is leaving due to crack in plumbing stack - $300 – not allowed

The Plaintiff alleges that this item was repaired on a temporary basis by Superior’s subcontractor at no additional cost to the Koropeskis. I find it was a deficiency. It has been more than 6 years since, and there is no evidence of further work having been required. I find that the Defendants have not proved the value of this claim.

r. Scott Schedule Item #C21 -Frost forming in back entrance - $600 – not allowed

This item was not disputed as a deficiency. The spray foam insulation invoice previously allowed at items 17 and 22 appears to also apply to rectify this item. In the absence of no other evidence as to the cost of this item, I find it has not been proved over and above what has already been allowed for the spray foam costs.

s. Scott Schedule Item #C23 – Draft and frost/condensation forming at receptacle covers - $1,500 – not allowed

The evidence of Mr. Koropeski was that this issue was rectified when the floor in the main room was insulated (item C22). No additional cost was incurred.

t. Scott Schedule Item #C24 – Floor joists cut out at plumbing stack - $1,500 – not allowed

Mr. Cooke’s evidence is that this work is deficient. Because of the way the floor joists have been cut away to accommodate the plumbing stack, it could compromise their integrity. The Plaintiff acknowledges that this issue had been raised by the Defendants in August 2014 and he installed extra boards to reinforce the wood. Mr. Cooke did not feel this was an appropriate repair, but did acknowledge that if there were to be issues with how this work was done, it would become evident from the insufficient support in that location within the 6 years since the work has been completed. The Koropeskis have not repaired this issue and have experienced no issues in this location. I find that this has not been proved to be a deficiency.

u. Scott Schedule Item #C25 – Bowing in drywall at bottom of stairs - $250 – not allowed

The evidence of Mr. Cooke was that this was in the existing part of the home. It is not clear to me that this drywall was part of the scope of work of the contract or attributable to an extra. In any event, Mr. Cooke has identified this as a cosmetic issue only, and there is no evidence as of trial, 6 years post-termination of the contract that any work has been done to correct it.

v. Scott Schedule Item #C26 – Drywall at main floor closet not completed - $250 – allowed

Mr. Cooke testified that the entire closet was incomplete, while Mr. Koropeski indicated it was partially incomplete. Regardless, I am satisfied that there is an element that is incomplete and to this day remains so. Given that the amount is nominal, I allow the full amount claimed.

w. Scott Schedule Item #C27 – New dining room entrance drywall not flush with existing plaster - $350 - allowed

I am satisfied based on the evidence of Mr. Cooke that this is a deficiency. While it may be cosmetic in nature, the work is defective. In the absence of evidence to the contrary, the nominal amount claimed appears reasonable given the description of the repair required (but not yet performed).

x. Scott Schedule Item #C28 – Vanity light electrical box 1 inch off centre - $250 – allowed

I accept that this is a deficiency. While the Defendants have, for the time being, installed a light fixture that is not affected by the offset, this does not mean that the issue will not need to be rectified at some point. The nominal amount claimed is allowed.

y. Scott Schedule Item #C29 – Item resolved

z. Scott Schedule Item #C30 – Toilet flange installed too far from the wall - $500 – not allowed

I accept Mr. Yoller’s evidence that this issue was discussed with the Koropeskis at the time of installation and that it was not possible to get the plumbing closer to the wall. While Mr. Cooke felt that the toilet needed to be moved back, he acknowledged that he was not able to inspect the plumbing as it was not open at the time of his inspection. He is unable to say whether Mr. Yoller’s explanation is valid or not. This has not been proven to be a deficiency. There is no evidence of any problems with the toilet as a result of installation in this manner and the toilet flange has never been moved back.

aa. Scott Schedule Item #C31 – Sink drain not properly installed - $50 – not allowed

While the item was proved to be a deficiency, the amount was not proved. Mr. Koropeski advises that he repaired this item temporarily in a manner different than suggested by Mr. Cooke. No evidence of cost of materials or time was provided.

bb. Scott Schedule Item #C32 – Flooring transitions not properly completed - $1,000 – not allowed

The Defendants argue that the transitions in the floor in the original home and the addition are not level. Proper underlay or levelling cement should have been used to avoid the transitions that are evident and have caused the installed flooring in the kitchen to split.

The Plaintiff takes the position that it was discussed with the Defendants, and they agreed, that due to the slope of the original home, the addition was made level to the largest room. Any further issues are as a result of the flooring chosen. Flooring was not part of the scope of work.

Mr. Cooke’s evidence was that the issue relates to different heights of different finishing floorings in the various rooms. Flooring was the responsibility of the homeowner. It has not been proven that the work with respect to constructing the floors that was within the scope of the contract was performed deficiently.

cc. Scott Schedule Item #C34 – Load bearing post and concrete pad not installed under bearing points from Girder truss - $2,500 – not allowed

Mr. Cooke’s evidence was that the load bearing framing post and concrete pad were not installed in the basement in accordance with the drawings and were not to Code. He identified this as a potential structural issue. The Defendants did the work to correct this issue and properly install a beam themselves because they were concerned about safety of the structure.

Mr. Yoller testified that he explained to the Defendants that he installed the beam in a different manner, which is similarly effective. The Plaintiff argues that they did not object. Furthermore, when the building inspector attended at the property in March 2015 only some additional blocking was needed under the point load. The building inspector did not express any note or concern with respect to a missing tele-post. Mr. Cooke acknowledged that the building inspector would have inspected the installed beam as part of his inspection. The Defendants did not advise Mr. Cooke as to the alternate method of installing a beam, in lieu of the load bearing post.

I find that the Defendants have not proved this item to be a deficiency.

dd. Scott Schedule Item #C36 – 2 ½ inch rigid insulation not installed at sump pit per drawings - $1,500 – not allowed

No evidence was provided by the Defendants about this issue at trial and Mr. Cooke indicated that he had not identified or seen this issue himself, but rather was advised of it by Mr. Koropeski. Mr. Yoller testified that 2-inch insulation was installed, which is a permissible variance under the Ontario Building Code. I find that this alleged deficiency has not been proven.

ee. Scott Schedule Item #37 – Back entry stairs and landing attached without air barrier and flashing - $400 - $200 allowed

Mr. Cooke’s evidence was that the back-entry stairs were located too close to the house, resulting in moisture build up. Mr. Koropeski testified that he had to remove the decking off the back-entry stairs and move it away from the house. He said it took him 8 hours to complete. Flashing was installed by the exterior finishing contractor.

The Plaintiff takes the position that if it is a deficiency the amount is excessive. I find it is a deficiency. The Plaintiff’s position in the Scott Schedule is that $115 is sufficient to rectify this issue. Furthermore, it is argued there is no evidence of additional charges from the exterior finisher to rectify the flashing issue.

I find that the flashing issue would have likely been rectified by the exterior finishing contractor. Mr. Koropeski would have had to remove the stairs and incurred some cost in this regard. I allow $200.

[104] Based on the foregoing, I find that the total amount to be credited to the Defendants is as follows:

a. Credits acknowledged by the Plaintiff including H.S.T. = $ 19,769.35

b. Additional incomplete and deficient work as set out in paragraph 103 herein: $7,506 less $500 credit already accounted for in (a) on account of decks, grading etc., plus H.S.T. (note: I appreciate that H.S.T. has been accounted for in some materials costs, but these are minimal and have not been separated out), for a total of $7,916.78

Total credits: $27,686.13.

ORDER:

[105] For the reasons provided herein, it is ordered that:

a. The Plaintiff shall have judgment for the sum of $61,940.73 plus pre-judgment interest calculated from the date of commencement of the claim in accordance with the Courts of Justice Act; and

b. If the parties cannot agree as to costs, written submissions shall be delivered as follows, failing which the issue of costs shall be deemed to be resolved:

i. No later than 30 days following the release of this decision from the claiming party;

ii. No later than 30 days thereafter from the responding party;

iii. No later than 15 days thereafter for any reply; and

iv. Submissions shall be limited to ten pages, double-spaced, excluding offers, bills of costs, caselaw and other attachments.

[106] Counsel may schedule a brief video appearance before me if there any numerical or mathematical errors in this decision that require correction.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: November 29, 2021

COURT FILE NO.: CV-15-0315-00

DATE: 2021-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

2002759 ONTARIO LTD. Carrying on business as SUPERIOR CONTRACTING

Plaintiffs

• and –

CHRISTOPHER JAMES KOROPESKI, CAROLYN FRANCES KOROPESKI

Defendants

JUDGMENT

Nieckarz J.

Released: November 29, 2021

/cjj

SCHEDULE “A” Court File No. CV-15-00000315-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

• B E T W E E N:

2002759 ONTARIO LTD.

carrying on business as SUPERIOR CONTRACTING

Plaintiff

and

CHRISTOPHER JAMES KOROPESKI,

CAROLYN FRANCES KOROPESKI

Defendants

SCOTT SCHEDULE

A. PLAINTIFF’S CLAIM – CONTRACTUAL CLAIM

ISSUES

PLAINTIFF’S POSITION

DEFENDANTS’ POSITION

1. What was the Plaintiff’s scope of work as per the terms of the original contract between the parties?

Plaintiff was to complete all items listed on May 2, 2014 quote (TAB 22 of the Plaintiff’s AOD) as per the specifications on the drawings - Issued for Permit Drawings dated October 13, 2013 (A0, A1, A2, A3) (TAB 1 of Plaintiff’s AOD)

The Defendants were to complete the items listed on the May 2, 2014 quote (TAB 22 of the Plaintiff’s AOD). The Defendants scope of work had been determined at the time the quote was provided on January 23, 2014.

Any additional work identified as a result of amendments to the drawings in March/April 2014 (TABs 1-4 of Defendants’ AOD were extras to the contract

Any additional work requested by the Defendants was extra to the contract

Any work that was to performed by the Defendants that was performed by the Plaintiff was extra to the contract

The contract proposal dated August 7, 2014 (TAB 5 of Defendants’ AOD) was prepared by the Plaintiff at the request of the Defendants for financing purposes. It includes work that was to be completed by the Plaintiff and work that was to be completed by the Defendants and is not an accurate representation of the Plaintiff’s scope of work.

Original contract was verbally made January 2014. No written quote provided before project began June 2014.

The Defendants were given a turn-key quote of the entire renovation project, from demolition up to and including basic finishing. Defendants communicated to the Plaintiff they would supply and install many of the finishings to reduce the overall cost.

First time a written contract proposal was made was August 7, 2014 and was provided to us solely for financing purposes to give to our credit union. (Tab 5 of Defendant’s AOD)

The first time the Defendants saw the May 2, 2014 quote was in the Plaintiff’s AOD.

2. What was price of the original contract between the parties?

$186,000.00 plus HST

Provided verbally by the Plaintiff to the Defendants at a meeting at the Defendants’ home on January 23, 2014

$175,000.00, inclusive of HST

3. Are the Defendants entitled to any credits?

Yes, $17,495.00 plus HST for work that was not completed

Total contract price reduced to $169,505.00 plus HST

($191,540.65, inclusive of HST)

Yes $24 220.23 as per owner’s renovation repair expense summary showing labour and costs.

4. What is the amount owing to the Plaintiff by the Defendants on the original contract?

$46,540.65, inclusive of HST

• Less $1,000.00 credit agreed to (#C16 below)

$45,540.65, inclusive of HST

$0

B. PLAINTIFF’S CLAIM – EXTRAS ($29,865.29 plus HST)

ALLEGED EXTRA

PLAINTIFF’S POSITION

PLAINTIFF’S COST ESTIMATE

(exclusive of HST)

DEFENDANTS’ RESPONSE

DEFENDANTS’ COST ESTIMATE

1. Install Sump Pump, pit and drain

Identified as additional work outside of scope of initial contract to comply with the OBC (not in drawings available to the Plaintiff at the time quote was provided – see TAB 1 of Plaintiff’s Supplementary AOD)

See Answers to Defendants’ Undertakings (No. 6)

$900.00

See material list at TAB 28 of Plaintiff’s AOD

See Plaintiff’s project diary at TAB 37 of Plaintiff’s AOD (reference date July 12)

Was in City-approved building plan drawings (“building plan”) (Tab 5 of Defendant Supplementary AOD)

Also listed as part of quote in North American Lumber quote (Tab 15, pg 2 of Plaintiff AOD)

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

2. Supply an egress window for basement

Not part of original scope of work and requested by Defendants

Window on drawings that Plaintiff had at time of quote was 32x22 and was subsequently changed to an egress window that was 48x30 (handwritten on final drawings)

See Tab 1 of Plaintiff’s AOD

See Tab 5 of Defendant Supplementary AOD

$230.29

See material list at TAB 28 of Plaintiff’s AOD

Defendants asked Plaintiff to retain windows from demolition for use in the basement but they were old and of poor quality and were not used

Egress window is in drawings. Owners provided 3 windows for basement addition and were not credited for the reduction in cost (windows 5, 6, 8 on tab 9 of defendant AOD)

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

3. Open up laundry wall to expose drain pipes and re-plumbing to bring to Code and then re-drywall

Identified as additional work outside of scope of initial contract to comply with the OBC (not in drawings)

When plumber (Thermal Mechanical) went to tie in new plumbing to existing the existing had to be upgraded from cast iron to ABS

$810.00

Plaintiff has not provided any evidence confirming costs were incurred or amount charged, including through plumbing sub-contractor Thermal Mechanical

$0

4. Engineering costs associated with updated drawings

Not part of original scope of work and requested by Defendants

Defendants required ISO drawings to obtain building permit

Plaintiff had Todd Lowey & Associates prepare the drawings at his cost

$1,080.00

This item has changed in description. Originally it was listed as “Todd Lowey & associates LTD Engineering Iso drawing for building permits.”

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

5. Remove baseboards, repair walls, prime before drywall patching

Not part of original scope of work and requested by Defendants

$900.00

Owner removed the majority of baseboards, while the drywall contractor performed wall patching. Owner and contractor shared priming

$200

6. Paid for material delivered for siding/insulating original part of house

Was to be paid for by the Owner as not part of original scope of work

All drawings show that the exterior on the original house was to remain

See TAB 8 of Plaintiff’s AOD (old house is noted as an extra)

See TAB 22 of Plaintiff’s AOD (old portion of house is noted as an extra)

See TAB 34 of Plaintiff’s AOD (June 5 – note)

$5,850.00

This item has changed in description. Was originally titled “material to insulate and side original house.”

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

In Tab 22 of Defendant’s AOD, May 2 2014 quote, insulation and siding is contemplated.

$0

7. Removal of brick chimney and install B vent chimney to facilitate better placement of main beam

Not part of original scope of work and requested by Defendants

All drawings show that existing chimney was to remain

Change made due to the new beam required in the mudroom

Plaintiff agrees that it saved work elsewhere but states that cost savings are factored into the cost claimed

$390.00

The drawings show considerable alterations to the existing upper floor hallway, bedroom 3 doorway and bedroom 4 window. By performing this partial removal of the brick chimney (to bring it below the level of the new roof trusses it obstructed – the original reason for the changes noted above) and an installation of a B vent, the contractor was able to avoid all of these potential upper floor alterations. Net cost to contractor was likely reduced due to this decision, yet cost increased for the homeowner.

$0

8. Removal and replacement of front house shingles

Not part of original scope of work and requested by Defendants

All drawings show that the roof on the original house was to remain

See TAB 22 of Plaintiff’s AOD – original quote was for $4,000.00 and actual was almost double because it also included original house

See TAB 28 of Plaintiff’s AOD (roofing costs are separated)

$4,100.00

The agreement was to update shingles on original house too. This is specifically contemplated in the quote at Tab 22 of the Defendant’s AOD.

In any event, Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

9. Demolition of kitchen and bathroom

Not part of original scope of work and requested by Defendants

Part of the work that the Defendants were to complete

See TAB 22 of Plaintiff’s AOD – list of tasks to be completed by Owner

$800.00

Bathroom demolition is on drawings and partially invoiced elsewhere in extras under description “remove old ceramic tile and install ¼“ underlay in main floor bathroom.”

The majority of kitchen demolition is also listed in extra under description “Remove lath and plaster and add sheet rock and insulation in kitchen.”

The agreement was to remove existing kitchen. Plaintiff knew we had ordered cabinets.

Cabinet removal was planned to be done by owner but Defendant chose to do this early on in project without seeking Plaintiff approval.

$0

10. Remove lath and plaster and add sheet rock and insulation in kitchen

Not part of original scope of work and requested by Defendants

$1,950.00

This is a partial repetition of the extra under description “Demolition of kitchen and bathroom.”

The agreement was to remove existing kitchen. Plaintiff knew we had ordered cabinets.

$0

11. Change electrical box from single to double in kitchen

Not part of original scope of work and requested by Defendants

$100.00

Plaintiff AOD tab 37 page 14 shows this was performed on October 3, 2014 by “Stevo”, an unlicensed electrical worker.

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

12. Nail and screw down loose plank flooring in kitchen

Identified as additional work outside of scope of initial contract once demolition was completed

See Answers to Defendants’ Undertakings – No. 3

$350.00

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

Necessary to “make good walls, floor and ceiling” of Building Plan page A1 main Floor Plan Demolition for bathroom.

$0

13. Shim and install 5/8 plywood

Identified as additional work outside of scope of initial contract once demolition was completed

See Answers to Defendants’ Undertakings – No. 6

$400.00

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

Necessary to “make good walls, floor and ceiling” as contemplated by Building Plan page A1 main Floor Plan Demolition for bathroom.

$0

14. Install backing and kitchen cabinets

Not part of original scope of work and requested by Defendants

Work was initially to be completed by Defendants

See TAB 22 of Plaintiff’s AOD (list of items “by owners)

$2,200.00

The original agreement included replacing kitchen. Plaintiff knew we had ordered cabinets.

Contractor chose to install backing to ease cabinet installation.

$0

15. Level bathroom floor (lumber, screws and glue)

Identified as additional work outside of scope of initial contract once demolition was completed

$750.00

Creating a level support system and installing a floor is necessary when converting a crawlspace to a 4-piece bathroom. This is not an “extra” it is integral to agreed upon construction.

$0

16. Modify plumbing for vanity in upstairs bathroom

Not part of original scope of work and requested by Defendants

$60.00

Extension of drain requested to accommodate shelf area behind vanity.

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$60

17. Add a bathroom fan and exhaust

Not part of original scope of work as it was not on the drawings that Plaintiff had at time of quote (TAB 1 of Plaintiff’s AOD)

The mechanical ventilation design review form was not completed until after time of quote

$450.00

This was submitted as part of the building plan in the mechanical ventilation design review form. This form was submitted with permit and prepared by the contractor.

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

18. Build out shower wall and shelf area in upstairs bathroom

Not part of original scope of work (not on drawings) and requested by Defendants

$300.00

True extra since upper bathroom layout modified from Building Plan.

$150

19. Build tub stud wall (custom) in upstairs bathroom

Not part of original scope of work (not on drawings) and requested by Defendants

$500.00

True extra since upper bathroom layout modified from Building Plan.

$150

20. Open up hall closet to height

Not part of original scope of work (not on drawings) and requested by Defendants

See Answers to Defendant’s Undertakings – No. 3

$300.00

Drawings show alterations to the closet that existed in this space, as well as the addition of walls due to the changes in the direction of the staircase. While there is a component of this closet that is NOT on the drawings, the drawings show that only a portion is “extra” (eg. Where the angled section was built)

$50

21. Frame closet in main bedroom

Not part of original scope of work (not on drawings) and requested by Defendants

See Answers to Defendants’ Undertakings No. 3

$350.00

This is a true extra as not on Building Plan.

$125

22. Remove old ceramic tile and install ¼” underlay in main floor bathroom

Not part of original scope of work (not on drawings) and requested by Defendants

$225.00

Necessary to “make good walls, floor and ceiling” of Building Plan page A1 main Floor Plan Demolition for bathroom. Due to the substantial changes in this area of the house (the blending of multiple rooms, plumbing access holes, previous wall spaces, different types of finished flooring, etc) this was always necessary. It was a contractor oversight.

The demolition portion of this item appears under the extra description of “Demolition of kitchen and bathroom”

$0

23. Install 18” laminated beam in mud room ceiling

Not part of original scope of work (not on drawings)

Beam was not drawings that Plaintiff had at the time of the quote (TAB 1 of Plaintiff’s AOD)

Issue of missing beam was raised by Plaintiff and drawings were revised prior to building permit being issued

$2,800.00

In Building Plan

Beam installed but point load not supported to basement as per engineered drawings.

$0

24. Change closet to 85” RO in mud room

Not part of original scope of work (not on drawings) and requested by Defendants

$950.00

There is only 1 closet in this room and it was not changed at any point. It is 82” in height and was in the Building Plan.

$0

25. Raise door headers in closet outside of mud room

Not part of original scope of work (not on drawings) and requested by Defendants

This arose from the installation of the new beam in the mudroom – end of the beam was extended over the header of this closet to support same rather than installing tele-post in basement

$1,000.00

There is no “door header” to raise in the mudroom.

$0

26. Install underlay in mud room

Not part of original scope of work (not on drawings) and requested by Defendants

$320.00

Necessary to “make good walls, floor and ceiling” of drawings, A1 main Floor Plan Demolition for Bedroom #1 area. Due to the substantial changes in this area of the house (the blending of multiple rooms, plumbing access holes, previous wall spaces, different types of finished flooring, etc) this was always necessary.

$0

27. Install fixtures, lower toilet in main floor bathroom

Not part of original scope of work (not on drawings) and requested by Defendants

Toilet had to be lowered because Defendants decided to remove ceramic tile

$1,500.00

Owner installed all fixtures in main floor bathroom.

Lowering of toilet flange was part of plan from beginning due to substantial changes in this area of the house. Bathroom listed as demolition in drawings. Contractor oversight.

Plaintiff has not provided any evidence confirming costs were incurred or amount charged.

$0

28. Work Bench Lights

Requested by Defendants – not part of original drawings

See Answers to Defendants’ Undertakings – No. 6

$300.00

C. DEFENDANTS’ CLAIM ($40,300.00 plus HST)

ALLEGED DEFECT

DEFENDANTS’ ALLEGATIONS

DEFENDANTS’ COST ESTIMATE

(exclusive of HST)

PLAINTIFF’S RESPONSE

PLAINTIFF’S COST ESTIMATE

(exclusive of HST)

1. Grading not completed around the addition

This work should have been completed at the time of backfilling the foundation

Defendants did not ask Plaintiff to landscape. Grading refers to bringing the ground to an appropriate level around the foundation to proper height.

$1,500.00*

*Extensive hand-raking and shoveling was done by Defendants.

Final landscaping was not part of the Plaintiff’s scope of work

$0

No evidence of costs incurred by the Defendants

If liable, repair cost should be limited to $500.00 (only if incurred by Defendants)

2. Demolition Debris was not removed from site

This work should have been completed at the time of backfilling the foundation and site grading

A pile of back porch steps, back porch foundation, and 2 tree stump roots, along with excavated fill was left in a long pile across the backyard along the new deck site.

$800.00*

*Defendants rented a pneumatic hammer and hauled debris to the landfill once it was small enough to load into a personal trailer by hand.

Demolition and debris removal was not in the Plaintiff’s scope of work

Plaintiff offered to help when issues arose with removal due to size of the debris and would have assisted with same in Spring 2015 when Plaintiff intended to return to the site to complete the project

The Plaintiff was not given opportunity to rectify and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

3. Old foundation does not match the new addition

The two foundations should have been blended when the parging was installed

$1,500.00

The Defendants knew it was going to be slightly different

The Plaintiff was not given opportunity to rectify and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable - cost for all parging (items #3, #4 and #5) would not exceed $1,500.00 total if incurred by the Defendants

4. & 5. Parging on foundation is cracking and parging under the stairs is incomplete

Spalling should be removed and scratch coat applied and parging completed

Incorrect application of parging.

$2,500.00*

Defendant removed all parging, then reapplied parging properly with mesh underlay first secured.

Exterior work was incomplete when contractual issues arose and contract was terminated by the Defendants

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, cost for all parging (items #3, #4 and #5) would not exceed $1,500.00 total if incurred by the Defendants

6a. Soffit and fascia has not been completed

Work to be completed

Since this was not completed, pigeons were getting into addition attic. Time was taken by Plaintiff Jan 2015 to install netting in place of completing this.

There is still significant pigeon feces in addition attic space.

$3,600.00

Work performed by All Season Siding.

Credit already provided as per #A3 above for new addition

Completion on existing house was not within the Plaintiff’s scope of work

Exterior work was incomplete when contractual issues arose and contract was terminated by the Defendants so plaintiff not given an opportunity to complete work

Credit of $1,160.00 already provided by Plaintiff and deducted from amount being claimed

Plaintiff has not received proof of amount claimed and does not know if cost claimed relates to whole house or just the new addition

6b. Siding had not been completed

Work to be completed

$8,000.00

Work performed by All Season Siding.

Owner purchased additional siding needed to complete job through Boncor Building Products

Credit for labour is already included as per #A3 above for the new addition

Completion on existing house was not within the Plaintiff’s scope of work

Plaintiff did purchase siding materials which was outside of the scope of the contract and has been claimed as an extra for which the Plaintiff has not received payment

Exterior work was incomplete when contractual issues arose and contract was terminated by the Defendants and Plaintiff was not given an opportunity to complete this work

Credit already provided for labour component by the Plaintiff and deducted from amount being claimed

Plaintiff has not received proof of amount claimed and does not know if cost claimed relates to whole house or just the new addition

If additional materials relate to existing house that was not part of the Plaintiff’s scope of work

7. Kitchen range hood exhaust above patio door

Exhaust needs to be relocated

Venting plan for this hood was discussed with Plaintiff and bulkhead extended between kitchen and addition to allow a 90 degree turn and go out south wall of house instead of over deck.

$500.00

Owners were aware of the plan regarding the installation of the hood and approved same

Installation of the kitchen rangehood was an extra for which the Plaintiff has not been paid for as it was not part of the original scope of work

$0

No evidence of costs incurred by the Defendants

If liable, Defendants’ cost is accepted (only if incurred by the Defendants)

8. Deck Stairs not built

Work to be completed

$400.00*

Owners asked for this work not to be completed until final grading was done

Contractual issues arose and contract was terminated by Defendants before Plaintiff could complete

Credit for same is already included as per #A3 above for this incomplete work

Credit of $400.00 already provided by the Plaintiff and deducted from amount being claimed

9. Deck railing is loose and unstable

Railing needs to be removed and replaced

$2,500.00*

Defendant removed screws and lowered entire railing to better secure and still met code.

Defendants were told in March 2015 that Plaintiff would reinforce the railing but Plaintiff was not permitted to do so prior to Defendants terminating the contract

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, repair costs would be $750.00 (only if incurred by the Defendants

10. Deck piers cracked and flaking

Piers need to be raised with an over pour

$800.00

There was no final grade selected by the Owners so they were an appropriate height at the time of installation

Once final grading was completed, the Plaintiff could have come and increased height and sanded the cracking tops with a grinder but was not permitted to do so prior to Defendants terminating the contract

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, repair costs would be $350.00 (only if incurred by the Defendants)

11. Sealant on top of patio doors has loosed and is falling off

Sealant is to be removed and replaced with exterior caulking

$500.00

This was repaired within scope of All Season siding installation.

Area would have been caulked until siding installed to prevent the infiltration of water. When siding is installed it is flashed, trimmed and caulked

Plaintiff was never permitted to view this issue so cannot comment

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, repair costs would be $50.00 (only if incurred by the Defendants

Work would have been done by siding installer regardless (no extra cost)

12. Frost forming on underside of peaked roof

Additional roof vents should be installed as well as additional more vents at the eaves

$500.00

Original house attic was not directly connected to the new attic to allow for airflow. Defendant had to cut a hole through original attic to be able to access new attic space.

Also, 3 additional roof vents were installed by All Season Siding (done later than siding installation).

There were no specifications on the drawings for additional exterior venting

Plaintiff does not know if this occurring in existing house or addition. Plaintiff does not know if the issue has been rectified as a result of the roof vent installation.

Ridge vent installed was as per drawing specifications

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of the costs alleged to be incurred by the Defendants

13. Low slope roof has not been completed as indicated on drawings and OBC

Tabs of each shingle is to be sealed with roofing cement

$800.00

The low slope application of the shingles was not specified on the drawings

The low slope application of the shingles is not required as per the OBC – Section 9.26.8 of the OBC provides the installation of shingles as claimed by the Defendants ion roofs with a slope less than 1 in 3. Roof in question has a 3/12 slope so this section of the OBC is not applicable.

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

14. Discharge pipe from sump pump has not been completed properly

Discharge pipe should go to a drywell

Plaintiff left this as a pipe above grade spilling onto ground

$350.00*

Defendant dug hole and installed drywell below grade and further away from house as per code.

Drywell is not specified on the drawings

This was an extra for which the Plaintiff has not been paid for as it was not part of the original scope of work

This would have been part of the exterior work the Plaintiff planned to complete in the Spring of 2015 prior to the termination of the contract by the Defendants

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

15. Insulated Concrete Forms have been installed improperly

Integrity of the building is not compromised but may make it more difficult for the drywall installer to fasten the drywall to forms which could add additional costs to the homeowners

$1,500.00

Concrete work was approved by the City building inspector

Drywall work in that area was performed by the Plaintiff’s subcontractor and no increased costs associated with same were charged to the Defendants

$0

No evidence of costs incurred by the Defendants

16. Poor air flow from heating system in basement

Additional heating pipes need to be installed

The installer did not follow the design supplied by Todd Lowey and Associates

$1,000.00

Plaintiff admits to same

$1,000.00 agreed to and should be deducted from amount owing as per #A4

17. Insulation in main floor was not completed properly

Voids in the floor joist cavity were left uninsulated and no vapour barrier was present.

Some were left uninsulated (eg. corners), while other cavities had a combination of rigid batt insulation and/or spray foam

$1,500.00

Defendant removed all insulation and Thunder Bay Insulations spray-foamed all cavities.

All insulation work was approved by the city building inspector

Original scope of work did not contemplate spray foam and as, such not included in Plaintiff’s scope of work

Any cost for spray foam over and above regular insulation cannot be claimed as against the Plaintiff as it could have been resolved with regular insulation at a much lower cost

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs alleged to have been incurred by the Defendants has been provided

If liable, repair cost would be $100.00 (only if incurred by the Defendants)

18. Electrical panel has not been properly labelled

Needs to be completed as required by ESA

Labels provided by Plaintiff through Hacio’s office are incorrect

$0.00

No comment as no costs associated with this alleged deficiency

$0

19. Air conditioner condensation pipe is disconnected at the stack

Pipe needs to be installed in proper location so it does not discharge onto floor. Also referenced as extra B6 above

$300.00

This pipe was pre-existing

$0

20. Poor installation of sump pump

Sump pump needs to be reinstalled

Pump did not work. Piping was installed incorrectly.

$750.00

Defendant purchased and installed a new sump pump and replaced with rigid piping.

Installation of the sump pump was an extra that the Plaintiff has not been paid for

Defendants never asked about warranty coverage for same.

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs alleged to have been incurred by the Defendants has been provided

If liable, the Plaintiff accepts the Defendants’ cost (only if incurred by the Defendants)

21. Frost forming in back entrance

Insulation needs to fill the entire cavity and exterior sheeting needs to be finished

$600.00

Defendant removed exterior sheeting below back entrance to investigate why the floor inside was so cold. Installation incorrect with puddle forming inside vapour barrier. See notes in Plaintiff AOD tab 38 page 9.

Thunder Bay Insulations spray-foamed this area at same time as basement headers, then recovered with original exterior sheeting.

This work was completed but Owner removed same to inspect work done by Plaintiff

Original scope of work did not contemplate spray foam and as, such not included in Plaintiff’s scope of work

Any cost for spray foam over and above regular insulation cannot be claimed as against the Plaintiff as it could have been resolved with regular insulation at a much lower cost

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs alleged to have been incurred by the Defendants has been provided

If liable, repair cost would be $100.00 (only if incurred by the Defendants)

22. Frost forming at bottom corners of walls in each room of the addition

Relates to Item #17

Same as #17

See #17

See #17

23. Drafts and frost/condensation forming at receptable covers

Drywall and vapour barrier to be removed and required insulation to be installed behind the electrical outlet

$1,500.00

Insulation was approved by the City building inspector

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, repair cost would be $500.00 (only if incurred by the Defendants)

24. Floor joists cut out at plumbing stack location

Floor joists need to be corrected at this location

$1,500.00

Defendants took picture of this alleged issue in August 2014 but at no time raised the issue with the Plaintiff while work was being conducted or requested that same be rectified

Issue identified in January 2015 when dispute about amount owing arose

Plaintiff should have been told about the issue and given an opportunity to rectify same when issue identified by the Defendants

Regardless, Plaintiff states work is not deficient as floor is reinforced with 2x6s and 2x4s glued and screwed to the offset joists

$0

No evidence of costs incurred by the Defendants

25. Bowed out drywall at bottom of stairs

Framing should have been straightened prior to installation of drywall

This has not been repaired yet as floor trim has not been installed.

$250.00

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, Plaintiff accepts the Defendants’ cost estimate (only if incurred by Defendants)

26. Drywall at main floor hall closet was not completed

To be completed

$250.00

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, Plaintiff accepts the Defendants’ cost estimate (only if incurred by Defendants)

27.New Dining Room entrance drywall is not flush with existing plaster

Framing should have been straightened.

$350.00

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, Plaintiff accepts the Defendants’ cost estimate (only if incurred by Defendants)

28. Vanity light electrical box has been installed 1” off centre

Can be moved and drywall patched and repaired. Remains to be completed.

$250.00

Plaintiff was not given an opportunity to inspect or confirm findings of the Defendants’ expert

Plaintiff was not given an opportunity to rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, repair cost would be $50.00 (only if incurred by the Defendants)

29. Bath tub faucets installed off centre

Cannot repair

$0

No comment

$0

30. Toilet flange has been installed too far from wall

Toilet needs to be moved

Still to be completed.

$500.00

The exterior wall does not permit the toilet to be moved back

This was discussed with the Defendants and they authorized the installation as is

$0

31.Sink drain has been improperly installed

Piece of pipe to be replaced or extended

Still to be completed. Has been temporarily repaired to function.

$50.00

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, Plaintiff accepts the Defendants’ cost estimate (only of incurred by Defendants)

32. Flooring transitions have not been properly completed

Three locations where flooring needs to be removed and underlay used to create gentle transition

Still to be completed.

Self-levelling cement was applied by Plaintiff in the two low locations (mudroom and upper floor landing) but transitions still evident.

Significant high point between kitchen and addition has split the installed flooring.

$1,000.00

The Defendants were aware that there was a slope to the original home and the addition was made level to the largest room in consultation with the Owner

Defendants were responsible for flooring after installation of the 5/8” subfloor

This repair/deficiency does not fall within the Plaintiff’s scope of work

$0

No evidence of costs incurred by the Defendants

33. Exterior entrance support posts not secured to concrete piers

Temporarily support upper structure and re-install

$350.00*

Defendant repaired this by jacking up back entrance area and properly securing posts.

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

If liable, Plaintiff accepts the Defendants’ cost estimate (only if incurred by the Defendants)

34. Load bearing post and concrete pad not installed under bearing points from Girder truss

Load bearing framing, posts and concrete pads were not installed as per plans

Plaintiff did not provide alternate engineered drawings to support this change from Building Plan.

$2,500.00*

Defendant rented a rotary hammer, broke up the basement concrete floor, dug out space and poured a proper cement pad. This was then supported with a telepost to blocking in basement ceiling.

The installation of this post relates to the installation of the mud room beam which is an extra for which the Plaintiff has not been paid.

There is sufficient load bearing based on the method of installation. The Plaintiff extended the beam over the door frame of the hall closet and supported same in an alterative manner. Defendants have not produced any evidence to prove that the load was not properly supported and the installation of the post by the Defendant was necessary.

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

35. Soil Gas Control has not been installed as per the OBC

Ventilation pipe to be installed

Not completed

Included in #20

This was an extra that the Plaintiff has not been paid for

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

36. The 2 ½” Type IV Rigid Insulation has not been installed as indicated

Not installed as per the drawings

No evidence of any rigid insulation visible from interior of sump pit.

$1,500.00

All insulation was approved by the City building inspector

Not required as per the OBC. The Plaintiff installed 2” Rigid Insulation as it is difficult to source the 2 ½” material in Thunder Bay

Owners were aware and never raised a concern

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs incurred by the Defendants

37. Back entry stairs and landing have been attached without the benefit of an Air Barrier and flashing

Air Barrier and flashing to be installed

This is related to #21 above.

Defendant removed exterior sheeting below back entrance to investigate why the floor inside was so cold. Installation incorrect with puddle forming inside vapour barrier. See notes by Plaintiff AOD tab 38 page 9.

Thunder Bay Insulations spray-foamed this area at same time as basement headers, then recovered with original exterior sheeting. Invoice in our file.

$400.00

Plaintiff was not given an opportunity to inspect or rectify this issue and therefore, cannot be liable for cost to repair

$0

No evidence of costs alleged to have been incurred by the Defendants

If liable, repair cost is $115.00 (only if incurred by the Defendants

Defendant has not provided any evidence confirming costs were incurred or amount incurred

*Indicates a claim for labour performed by Defendant.